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Is the Business of the Court Business?

Sunday's New York Times Magazine featured an article by Jeffrey Rosen, "Supreme Court Inc." suggesting that there has been an "ideological sea change" on the Supreme Court in favor of business interests over the last several years.

A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was "ready to bend the law in favor of the environment and against the corporations."

Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.

According to Rosen, this change reflects an "elite consensus," but not necessarily the views of the nation's populace. This is an interesting argument for the author of a book on the Supreme Court called The Most Democratic Branch. It is also a bit curious to suggest that the Court is out of touch with the American public because it lacks Justices willing to "bend the law" in favor of interest groups that were unable to prevail through the democratic process.

Rosen's article has prompted substantial comment, including interesting posts by Jack Balkin and Larry Ribstein.

Rosen's article is interesting, but is it really all that accurate or insightful? Before answering that question, read Eric Posner's deconstruction of the Rosen's piece at Slate's new legal blog Convictions. After surveying the evidence Rosen marshals to make his case, Posner concludes:

the Supreme Court is not increasingly pro-business, but maybe it is increasingly pro-market, finally catching up to a change in the public mood that began in the Carter administration. To preserve the idea that its jurisprudence is "biased" in favor of business, rather than just sensible or reasonable or within the range of colorable legal argument or for that matter a long overdue reaction to its previous anti-business "bias," Rosen argues that maybe there are people out there who really are populist; he seems to think that the Supreme Court and elite, bipartisan opinion that (he acknowledges) it reflects are "biased" in favor of business because this populist sentiment no longer plays a role in its opinions. "Unbiased," in this view, is populist. But Rosen does not show that populism is on the rise; the fates of the two most populist presidential candidates, Huckabee and Edwards, suggest otherwise. Even if it were, it would be puzzling to argue that the Supreme Court should hold its finger to the wind and start ruling against businesses--indeed, should have started years ago, when this "pro-business" trend Rosen decries began--and if it doesn't, that must be because of "bias." The article boils down to the claim that the Supreme Court is biased in favor of business (that is, is excessivly pro-market) because it failed to anticipate, and today shows no inclination to heed, marginal populist sentiment that has made no inroad on electoral politics.

therut:
So he wants a dishonest USSC so they will bend the law toward liberalism. At least he is honest in his need for dishonesty. No wonder I could never be a liberal. My momma taught be better than that. I suppose law school might have corrupted me but I doubt it. Maybe the 1960's. Nah that did not appeal to me either. Maybe a elite school like Harvard, Yale etc. Nah. Torture--- Maybe.
3.17.2008 11:07pm
George Weiss (mail) (www):
3.17.2008 11:11pm
mrshl (www):
I'd be much more interested in seeing some analysis of <a rel="nofollow" href="http://www.slate.com/id/2185844">Doug Kendall's brief piece in Slate</a> a few weeks ago. Kendall doesn't really argue for or against the Court's pro-market/pro-business vector. But, he does set off Orin Kerr's umpire alert by claiming the court arrives at pro-market results via opposing interpretive rules.

<blockquote>
It is extremely hard to reconcile what the court has done in cause-of-action cases like Stoneridge with its approach to pre-emption cases like Rowe, Riegel, and Preston. In the cause-of-action cases, the court says Congress must unmistakably express its intention to allow people to go to court to enforce federal mandates. If Congress isn't crystal-clear, potential plaintiffs are out of luck. But in the pre-emption cases, the court seems untroubled by a lack of clarity on Congress' part, ruling that federal law pushes aside state actions or remedies when it's not at all certain that's what Congress so intended. There's one thing these approaches do have in common: They both favor business interests.
</blockquote>

Kendall's fairly narrow claim would seem to provide a more difficult target than Rosen's broad strokes.
3.17.2008 11:30pm
mrshl (www):
A technical aside: I'm not sure why the HTML works in the preview but not in my actual comment.
3.17.2008 11:31pm
RIch B. (mail):

Rosen argues that maybe there are people out there who really are populist; . . . But Rosen does not show that populism is on the rise; the fates of the two most populist presidential candidates, Huckabee and Edwards, suggest otherwise.


The mind boggles at the possibilities of what "populism" might mean in the context of being something that is unpopular and on the wane.
3.18.2008 12:28am
A. Zarkov (mail):
It seems to me that SCOTUS as an institution is ill equipped to bend the law against corporations. They are not a legislative body with the power to conduct fact finding by holding hearings. We should look to Congress to do this, and if they are unwilling to do their duty, then we need a new Congress.
3.18.2008 12:33am
Tony Tutins (mail):
In the cause-of-action cases, the court says Congress must unmistakably express its intention to allow people to go to court to enforce federal mandates. If Congress isn't crystal-clear, potential plaintiffs are out of luck.

This has been pretty much the case since Touche Ross in 1979, with a completely different line-up on the Court.


But in the pre-emption cases, the court seems untroubled by a lack of clarity on Congress' part,
3.18.2008 1:31am
Tony Tutins (mail):
Whoops, wrong button.

But in the pre-emption cases, the court seems untroubled by a lack of clarity on Congress' part,

I agree with this. Allowing pre-emption on the thinnest of pretexts does raise a parade of horribles, because there is a buttload of federal regulation. While I can see that Congress might want to limit the liability of companies making lifesaving medical products, Congress should say so. People made quadriplegics when their cars flipped over due to a design defect should not be denied recovery because the car met all the applicable FMVSS. Rowe's connecting a law regulating air carriers to truck shipments sounds dubious. And so on.
3.18.2008 1:38am
Justthisguy (mail) (www):
IMHO, the rot set in with the Roscoe Conkling interpretation of the 14th Amendment. I really don't care what y'all say, a Corporation is NOT a person. A Corporation is a creature of the State. Used to be, you needed to get a special act of the Legislature passed each time you wanted to form a Corporation, everyone understanding that forming a corporation was in the way of being an un-natural act.
3.18.2008 3:42am
Sam Hall (mail):
Tony Tutins said: "People made quadriplegics when their cars flipped over due to a design defect should not be denied recovery because the car met all the applicable FMVSS."

Not so. When the government decreed what a safe car is by passing the FMVSS, they took on the liability.

Any car with high ground clearance is going to be more prone to rolling over than a sports car that is close to the ground. That isn't a design defect, just one of the trade-offs you make when you pick a car.
3.18.2008 7:25am
M.E.Butler (mail):
Much more objectionable than Rosen's reasoning were the illustrations that accompanied the article. The drawings of the Justices with men in suits (corporate executives? lobbyists?), with golf clubs and martini glasses, suggested what the article did not: that the Court has been swayed by corporate lobbying or worse.

The article contained no such allegations: what's with the editors of the NY Times Magazine that makes them think it's ok to suggest that the Court is on the take from business?
3.18.2008 1:41pm
markm (mail):

RIch B. (mail):

The mind boggles at the possibilities of what "populism" might mean in the context of being something that is unpopular and on the wane.


Populism is not a political position, but a political style with many definitions. From Wikipedia, One of the latest of these is the definition by Daniele Albertazzi and Duncan McDonnell who, in their volume Twenty-First Century Populism, define populism as pitting "a virtuous and homogeneous people against a set of elites and dangerous 'others' who are together depicted as depriving (or attempting to deprive) the sovereign people of their rights, values, prosperity, identity and voice". Or as I would put it, populists appeal to the unconsidered prejudices of the "common man" against "elite" opinions - "common man" and "elite" varying according to whose votes they hope to get, and whom they are running against. Populists may appeal to racial prejudice, to the uneducated against the educated, and even to collectivist economic notions and anticommunism at the same time. And those who think that's absurd are just pointy-headed intellectuals.

Andrew Jackson pioneered the technique, running as a representative of the frontiersmen and poor farmers against the bankers and political elite of the east coast cities. Although he was only a part-time populist and took sensible positions on most issues once in office, to keep his populist credentials he repealed the charter of the Second Bank of the United States (possibly the first American case of voodoo economics), and broke many treaties with Indian tribes so they could be swept out of the way of settlement. In 1860, various candidates appealing to northern and southern racism lost to Lincoln, who was far more common than any of them. William Jennings Bryan took populism to new lows; his 1896 bimetallic platform was the worst economic idea ever endorsed by a major American party, and later he appealed to those ignorant of science by prosecuting Scopes for teaching evolution. In the 1968 and 1972 elections, George Wallace was a populist espousing the raw racism of the most backwards voters of his day. Nixon countered by sending Vice President Spiro Agnew out to rant about "pointy-headed intellectuals". And now, Edwards is an economic populist telling voters that the well-to-do didn't earn their wealth, hile Huckabee appeals to the frequent popular impulse to ban everything preachers disapprove of...

Note that being anything but a common man himself never stopped a populist. Jackson was rich. Edwards runs his campaign out of a house that looks like it has it's own zip code. And Agnew was more of a common criminal than a common man.
3.18.2008 6:18pm
Bama 1L:
Andrew Jackson? Surely Ti. Sempronius Gracchus must be credited for inventing the populist style!
3.18.2008 6:43pm