Balkinization  

Sunday, March 16, 2008

Supreme Court Backs Business Interests; Dog Bites Man

JB

Jeffrey Rosen reminds us that the contemporary Supreme Court has been remarkably friendly to business interests. It is good to have an account of this in the popular press every now and then, and no one is more deft than Rosen in telling the story. But the story itself should hardly surprise anyone.

From the standpoint of political science it is unremarkable that the modern Supreme Court has tended to side with business interests. First, as a preliminary matter, it is rare that someone gets appointed to the Supreme Court unless they are simultaneously acceptable to the mainstream of American politics, to political elites, and to elites in the organized bar. The same is true of the lower federal courts as well, although to a lesser extent. Candidates drawn from this pool are unlikely to be very hostile to business interests, and there is a good chance that they will be sympathetic. These tendencies mean that, in the long run, federal judges sympathetic to or supportive of the claims of business litigants will be more numerous than judges hostile to those claims.

Second, we are currently living in the late stages of a period of Republican dominance in American electoral politics. Since Reconstruction, the Republican Party has been allied with business interests. From 1968 to 1992 the Republican Party made every single Supreme Court appointment. The Republican Party has changed during the past three decades, particularly on social issues, where it became far more reliably conservative. But the party never lost its strongly pro-business orientation: although there are some exceptions, both social and religious conservatives and moderate and "country club" Republicans tended to converge on a pro-business agenda.

The only Democratic President who appointed any Supreme Court Justices since 1968 was Bill Clinton. Viewed from the standpoint of the 1960's, Bill Clinton was pretty much a liberal Republican, fiscally conservative (by liberal Democratic standards) and socially liberal. Therefore it is hardly surprising that Clinton's judicial nominees were unlikely to be very hostile to business interests, and some of them, like Stephen Breyer, were quite sympathetic. Thus, the contemporary Supreme Court consists of a liberal wing mostly sympathetic to business interests and a conservative wing decidedly sympathetic to business interests. Get those two wings flapping together, and we have liftoff.

Third, as Charles Epp pointed out, whatever the ideological content of the judiciary, the judiciary is more likely to recognize rights claims when they are presented by a consistent and coherent litigation strategy that repeatedly brings those claims before the courts. Rosen's article shows how the U.S. Chamber of Commerce and other business interests made the wise decision to create such a comprehensive litigation strategy, accompanied by lobbying efforts directed at the political branches. This same period also saw the rise of conservative public interest litigation groups and conservative think thanks that promoted conservative positions in litigation and conservative ideas, including pro-business ideas.

When you combine the background constraints on the appointments process, the effects of partisan entrenchment in the judiciary, and the coordinated litigation and lobbying strategy of business interests, the effect is likely to be very strong indeed.

Although Rosen's description of the past makes it sound as if the Supreme Court was once hostile to business interests, this is really only a matter of degree. Throughout its history, the Supreme Court of the United States has been remarkably friendly to the interests of capital and to the particular claims of dominant business interests. There have been periods, like the late nineteenth and early 20th centuries where the Court has been decidedly pro-business, but the baseline of variation has always been pro-business, and that is unlikely to change unless we significantly changed the pool of elite lawyers, judges, and politicians who might be considered for Supreme Court appointments. (There was a time during the late 19th century when almost everyone appointed to the Supreme Court had been a railroad lawyer or had significant connections to the railroads). That is true whether the Democrats or the Republicans are in charge. There is little reason to think that Clinton and Obama appointees will be openly hostile to business interests, even if their politics are more liberal then their Republican counterparts. Instead, Clinton and Obama appointees will probably be drawn from the ranks of liberal thinkers who are schooled in law and economics and cost-benefit approaches and have an appreciation for business concerns. Put in the language of a different time, they are more likely to be progressive than populist.



Comments:

I was pleased that Rosen led with a mention of Lewis Powell's 1971 memo, which landed him on the Court. It comes as close to a game plan for the right's political ascendancy as any I've seen, and it's easily googled. Powell, a Virginia Democrat, proves Rosen's point that party has less to do with the matter than attunement to all things corporate at the expense of whatever else may bring good things to life.

I lay undue corporate dominance of our political process at Powell's doorstep. His opinion in Bank of Boston v. Bellotti, overlooked by liberals as an object of shame in favor of Buckley v. Valeo, laid the plutocratic groundwork for Buckley by setting the principle that money needs to be set free. It invalidated a state law limiting a corporation's participation in political campaigns to matters relating to its particular business. After Bellotti, corporations were free to unite under a class rubric, just as the Powell memo urged them to.

Powell knew exactly what he was doing in this opinion, and one would have to read Bush v. Gore to find a more cynical statement than his remark in Bellotti that there was no showing of a risk of undue corporate influence.

Ya think?

There was no showing, all right -- if you ignore everything that Powell prescribed in his 1971 memo. You would think recusal might have been in order. Instead, he wrote for the Court.

Again proving Rosen's point about conservatives such as Scalia and Thomas, a dissenter in Bellotti, alongside the liberals, was Rehnquist, citing the long tradition of state limits on what are after all creatures of the state, not human beings.

So much for the good old days.
 

Good analysis and if anything, understated.

At this point the judiciary and the business sector are just entering a deeper relationship-one past the initial courtship phase.

The industry paid judicial junkets, the targeting of non-business friendly judges in elections, and the active promotion of business friendly judges at the state level all trend toward a long-term relationship. There won't be any divorce soon.

Meanwhile at the Article III level, we are seeing a move toward federal pre-emption of state tort always in favor of industry, and progressively higher standing requirement hurdles imposed on the citizenry. The USCOC has been working against the trial lawyers for several decades now in the "working the refs" fashion they have. And of course its working.

This judicial culture isn't going away anytime soon, I'm afraid.
 

As a way of reinforcing "occasinal observer"'s point, I note the ridiculous applause cast Powell's way by liberals who should have known better because of his alleged sagacity in constitutional law matters, particularly affirmativeby action and abortion. Thus the "test" following his retirement in 1986 was to get "someone like Powell," which meant, in context, making sure that the successor was "sound" on abortion and affirmative action. The issues addressed by Rosen are of little or no interest to most teachers of constitutional law, alas.
 

Reference to the "Powell memo" in this context as compared to a broader one of promotion of conservatism is specifically ideal since it was particularly concerned with protecting business interests.

The citation of Bellotti (btw Brennan supported Buckley and might have written chunks of it) is rather fascinating too. Rehnquist wrote a remarkable dissent that (aside perhaps from its views on incorporation) could have been written by a labor progressive.

White's dissent is also interesting, including its acceptance of some rights of corporation speech. Its nuanced views underlines the excesses of formalism and perhaps the value of his turn on the Court.

Honestly, I'm sympathetic to the majority opinion here, but respect the dissents. It is notable btw that Stevens is a fiscal libertarian in various ways (he has voiced personal opposition to the minimum wage) and when Breyer's nomination was up, Naderites opposed him as too pro-business.

This issue underlines that on various issues we simply don't have a consistent liberal of the Douglas/Brennan/Marshall strand (or populist of Black) though I am not sure how Ginsburg places on this issue.

Anyway, thanks for the heads up ... I have read about the efforts of the business community in the nomination process in recent years, but with focus on hot button issues like abortion, it bears repeating.
 

OTOH, if obama or hillary govern as a repudiationist president, there may be more leeway to promote a William Douglas, Tribe or Levinson type.

hopefully one in their mere teens ;)
 

Court decisions concerning business should be primarily restricted to interpreting statutes, regulations and contracts, which are not nearly as susceptible to legislation from the bench as is the Constitution. Therefore, the ideological alignment of the courts should matter less than the ideological makeup of the Congress or the regulators making the law.

Where the Courts abused its power to interpret the Constitution was when it rewrote the commerce clause to empower Congress to do enact nearly any restriction on business and then allowed Congress to unconstitutionally delegate to the Executive the power to legislate and adjudicate regulations. I hardly see how these acts were pro business.
 

Powell was tragically limited, viscerally fearful of the Other. For him that took in all that the 1960s stood for. His Lawrence v. Texas opinion, recanted in his final days after learning to his great surprise that a clerk of his was gay, is infamous in that regard, but another opinion of his, United States v. Jones, denying even a modicum of due process rights to insanity acquittees, is another case in point. Each opinion would strike the judicious reader as that of an "Eeeuw!!!! Lock 'em up and lose the key" x-ophobe (for all stigmatized values of x).

(Disclosure: I wrote a law review note while Jones was pending that found its way into chambers and, when the opinions issued forth, saw what was obvious: the dissenting opinion, by Brennan on behalf of himself and three others, was reasoned in the way an Opinion of the Court should be but wound up the minority view by dint of a last-minute switch. By contrast, Powell's majority opinion was an off the cuff, know-nothing screed, despicable in the way that Lawrence is. Further disclosure: I'm neither gay nor insane.)

Let's concede that Powell wrote his 1971 memo into unnerving times. That said, he was just a pendulum rider for hire, ushering in a corporatist state that rallied the nation to nothing more than the need to reverse course, damning any and all limits to the counterrevolution. There were many ways in which a more judicious Justice might have tempered his thinking so as to lay the foundations for a midcourse correction. Thomas Hobbes wrote into far worse times for England – people were killing each other, divine right was in the air – and yet he planted the seed of social contract theory, governance by consent, an idea to which "nicer" political philosophers such as John Lock would later gravitate, giving us our liberalism.

American history gave Powell all the clues he needed regarding the threat of corporatism, yet he drew on none of them. Give him is due for his regaled idea in Bakke that, hey, it's okay to actually see them every so often in a becalmed university setting. No one is total evil. Yet at bottom he was a well-heeled corporatist in robes, with far greater power than Hobbes ever had in a situation far more perilous for the world as a whole. We live today in his legacy, which Rosen nicely catalogs. It deserves a shiver.
 

"Where the Courts abused its power to interpret the Constitution was when it rewrote the commerce clause to empower Congress to do enact nearly any restriction on business and then allowed Congress to unconstitutionally delegate to the Executive the power to legislate and adjudicate regulations. I hardly see how these acts were pro business."

It is true that on the surface these acts are not pro-business, and indeed if the federal government is so inclined, they can be used to regulate business, but they serve the interests of business when you combine them with pre-emption of state regulation and a pro-business executive. In that case, the effect is to prevent regulation beyond the minimal level that the executive chooses to impose.
 

billposer:

The GOP is most definitely the party of business the way the Dems are the party of government.

However, even the most pro business GOP President can only hope to slow the bureaucratic regulation of business through political appointments. It is nearly impossible to reverse most regulations once they are in place.

Any decisions the Courts make in favor of business are dwarfed by the harm caused by the bureaucratic leviathan they unleashed back during the New Deal.
 

Any decisions the Courts make in favor of business are dwarfed by the harm caused by the bureaucratic leviathan they unleashed back during the New Deal.

# posted by Bart DePalma : 11:00 AM


Maybe you'd care to detail some of that "harm"?
 

In fiscal year 2000, some 54 federal departments and agencies and over 130,000 federal employees will spend over $18.7 billion writing and enforcing federal regulations.

Center for the Study of American Business
Regulatory Budget Report No. 22
August 1999

The average annual cost of regulation, paperwork, and tax compliance for firms with fewer than 500 employees is about $5,000 per employee. Firms with 20 to 49 employees spend, on average, 19 cents out of every revenue dollar on regulatory costs.

U.S. Small Business Administration

Federal regulations cause $1.5 trillion (in 1999 dollars) in economic output to be lost each year. This is roughly equivalent to the entire economic output of the Mid-Atlantic region: Delaware, the District of Columbia, Maryland, New Jersey, New York, and Pennsylvania.

Richard Vedder
John M. Olin Visiting Professor of Labor Economics and Public Policy
Center for the Study of American Business
 

Baghdad, that's not the "harm" caused by regulations, that is the cost. There could very well be, and likely is, a far greater cost if the regulations were not in place. It's up to you to prove the harm, not just list the cost.
 

This targeting of Powell in particular is unfair. The reason he was deemed an "ideal" model was that he was not simply not completely evil, but repeatedly on the right side.

Want to count the ways? Abortion. The Eighth Amendment (supported proportionality review). The Fourth Amendment (a swing vote, sometimes supporting liberal dissents). Yes, Bakke. Religious cases. etc.

The idea some 70 something guy didn't understand homosexuality in the early 1980s is also far from shocking. A majority NOW are wary in some ways. He opposed criminalization in his separate opinion and yes changed his mind. More than many would, including those less conservative than he.

This does not mean the guy was some ideal justice. He clearly was conservative on business issues etc. Truth be told, even the "liberals" on the Court now have various problems.
 

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