The neoliberal conquest of the Supreme Court

Abstract

Neoliberalism is an anti-democratic ideology. It takes decisions about the allocation of scarce resources out of the hands of public institutions and places them in the hands of private actors. Despite a distrust of democratic institutions immanent to neoliberalism, its reach within those same institutions reveals potent ideological lessons. Even the courts, ostensibly a bulwark against anti-democratic impulses, have incorporated neoliberal arguments into their rulings. As the courts have adopted neoliberal discourse they have reimagined society as a market populated by consumers. Accordingly, in this article we examine five Supreme Court rulings that illuminate how the publicly interested citizen is replaced by the self-interested consumer as the basic unit of democracy. We argue these rulings rhetorically predispose voters to think of social problems in the neoliberal language of privatization and profit through three themes: (1) elevating the market, (2) expanding the market, and (3) advertising the market. Broader implications are discussed including a more comprehensive explanation for how neoliberal judicial discourse has played a vital role in orienting the public to accept policies designed to concentrate public resources and decisions into the hands of private actors.