In his much-discussed New York Times Magazine article, Jeffrey Rosen claims that the Supreme Court has become "pro-business." Eric Posner has already dissected much of the very weak evidence on which Rosen's thesis is based. I would add that Rosen's thesis is undermined by his conflation of being "pro-business" with being pro-free market, and by the Court's reluctance to provide even minimal protection for constitutional property rights and economic liberties.

I. Pro-Market vs. Pro-Business.

Rosen, like all too many other analysts conflates being "pro-business" with being pro-free market. In reality, however, business interests often favor government intervention. For example, they are happy to support regulations that hobble their competitors, provide them with subsidies, protect them from foreign competition, and so on. Politically influential corporations such as General Motors also benefit when the government condemns property that they covet and transfers it to them. As I explained in this post, libertarian and conservative public interest law firms found themselves unable to pursue a pro-market litigation strategy until they reduced their dependence on corporate support - in part precisely because business interests often support government intervention. Thus, even if Rosen is correct in claiming that the justices reflect "an emerging spirit of agreement among liberal and conservative elites about the value of free markets," that would not necessarily be a "pro-business" agenda. It benefits some businesses, but also harms the interests of others.

In reality, however, there isn't much evidence of a pro-market tilt on the Court either. Much, of course, depends on the baseline you apply. If you believe that property rights and economic liberties deserve virtually no judicial protection at all, than even the modest degree of protection they receive from the current Court will seem like too much. That said, I think the evidence suggests that the Court is very far from being pro-market. Constitutional property rights remain mired in a "second class" status relative to other individual rights - a status reaffirmed in several recent decisions. Judicial protection for other economic liberties is even weaker than that.

II. The Continuing Second Class Status of Property Rights.

In the area of property rights, the Court held in Kelo that the government can condemn virtually any property it sees fit and transfer it to another private party. Contrary to Rosen's claims that the Court is more pro-market than public opinion, in this case public opinion overwhelmingly (80% plus) favored greater protection for property rights than the Court. Although the Court majority agrees that private property can only be condemned for a "public use," it leaves the definition of "public use" almost entirely up to the discretion of the very same government authorities who wanted to condemn the property in the first place. With the possible exception of the Second Amendment, no other part of the Bill of Rights has been so completely negated by wholesale judicial deference to the government.

In recent years, the Court has also made it easier for government to severely restrict property owners rights without having its actions be declared a taking under the Fifth Amendment and thereby without having to pay the "just compensation" the Amendment requires. In the 2002 Tahoe-Sierra case (won by John Roberts as the lawyer for the government) the Court undermined much of the limited increases in protection against "regulatory takings" that it had extended to property owners in the 1980s and 90s (Richard Epstein provides a good discussion of the case's impact here). Most recently, in Wilkie v. Robbins, the Court held that, even in cases where there is a clear violation of constitutional property rights, the victims are not entitled to remedies that are routinely available for violations of other individual rights protected by the Bill of Rights.

III. The Third Class Status of Economic Liberties.

As limited as is the Court's solicitude for property rights, it extends even less protection to economic liberties. With the possible exception of Justice Thomas, all of the justices support the view that "economic" regulations require only minimal "rational basis" scrutiny that in practice leads to judicial endorsement of even the most blatant special interest manipulations that restrict individual liberty in order to benefit politically powerful interest groups. This despite growing evidence compiled by co-blogger David Bernstein and other scholars indicating that the Fourteenth Amendment was intended to provide far more than minimal protection for economic freedom. Certainly, the Court's unwillingness to provide even a modest degree of protection for economic liberties contrasts sharply with its solicitude for "noneconomic" unemurated rights, such as the right to sexual autonomy, abortion rights, and the right to marry (which is protected even in the case of death row inmates).

Rosen may be right in so far as today's Court gives property rights slightly more protection than did its predecessors between the late 1930s and the 1980s. That period, however, was an extreme anomaly in which judicial protection for property rights was far weaker than at any other time in American history. As James Ely shows in his excellent history, The Guardian of Every Other Right, judicial protection for property was much stronger during the Founding era and most of the 19th and early 20th century. And, though property rights gained some modest ground in the 1980s and 90s, Supreme Court protection for other economic freedoms hasn't advanced beyond its post-New Deal nadir.

Robert Levy, co-counsel for the gun owners in the Heller Second Amendment case, makes an excellent point in his op ed on the case today. Even if the Court recognizes the existence of an individual constitutional right to bear arms, that doesn't necessarily mean that the right will get any effective protection. The Court might recognize the existence of the right, but defer to the government in defining its scope, thereby effectively leaving the right to the tender mercies of the very officials whom constitutional rights are intended to protect against:

[C]an Washington's ban on all functional firearms coexist with a Second Amendment that secures an individual right? That question might hinge on how rigorously the court reviews the constitutionality of Second Amendment restrictions. If the court believes the Second Amendment meaningfully constrains government, Washington's ban is impermissible....

If the district's outright ban on all handguns, in all homes, at all times, for all purposes, is determined by the court to pass muster, it will mean that the Supreme Court intends to rubberstamp just about any regulation that a legislature can dream up - no matter whether the government has offered any justification whatsoever, much less a justification that would survive strict scrutiny. That would, in effect, excise the Second Amendment from the Constitution. A right that cannot be enforced is no right at all.

Recognition of a "right that cannot be enforced" is exactly what the Court has often done in the field of property rights. As I noted in my last post, the Court - especially in recent years - has often held that individuals are entitled to protection for property rights under the Fifth Amendment's Takings Clause and other constitutional provisions. However, they have heavily deferred to the government in defining the scope of those rights, often effectively negating them as meaningful protections for individuals targeted by the state. For example, the Court has allowed government nearly unlimited authority to define the scope of what constitutes a "public use" justify condemnation of private property under the Fifth Amendment. Entrusting the political branches of government with the authority to define the scope of a constitutional right is much like giving wolves the power to determine how much access they will have to the chicken coop. The chickens - especially those who lack political influence over the wolfpack - are unlikely to last very long.

Unlike some of my co-conspirators I don't have the expertise to opine on the question of how far a constitutional right to bear arms should extend. However, experience in other areas of constitutional law suggests that any victory for individual rights will be a hollow one if the Court defers to the government in determining how broad the right should be.

There is perhaps, some symbolic value in having the Court recognize the existence of a right, even if it doesn't give the right any real protection. But that symbolic value must be weighed against the danger that the public will assume that the judiciary is actually enforcing the right even when it isn't. Given the rational ignorance of most voters, there is a real danger that the public will assume that a judicial decision recognizing the existence of a right without giving it any real protection has "solved" the problem of government overreaching in this area.

CONFLICT OF INTEREST WATCH: I suppose I should mention that I am an unpaid adjunct scholar at the Cato Institute, where Levy is a senior fellow, and that he has made generous financial contributions to George Mason Law School (my employer and his alma mater). I don't think any of this actually affects my evaluation of his arguments. But I note it here for the benefit of the blogging ethics mavens out there.