The Supreme Court Term and the Coming Confirmation Process

Rick Pildes

[Cross-posted from The Federalist Society Online Debate Series]

By the end of June, the Supreme Court Term might well look like this: the Court will have held unconstitutional Congress' attempt to limit corporate and union electioneering spending. By the same 5-4 majority, the Court might have held unconstitutional Congress' response to the last financial crisis, the Sarbanes-Oxley Act, enacted in the wake of the Enron, WorldCom, and similar corporate scandals of the late 1990s-early 2000s (Full disclosure: I represent seven former Chairmen of the SEC in this case, who are arguing in favor of the constitutionality of the Act). And the Court might have held unconstitutional the criminal conviction of the man who more than anyone else, is the most visible face of those corporate scandals: Jeffrey Skilling, the former President of Enron. Think about that picture: Congress' effort to legislate in the wake of the last corporate scandal, unconstitutional. The conviction of Enron's head, unconstitutional. Congress' effort to rein in corporate participation in elections, unconstitutional. All this as the country roils with the aftermath of the worst financial crisis since the Great Depression, including angry debates about whether entities like Goldman Sachs committed fraud or engaged in unethical behavior in ways that contributed to the financial meltdown.

At the start of the Court's Term, I suggested that how the Court implicitly responded to the financial crisis would be the defining issue for the Court this year. And if the picture I've sketched is indeed how the Court's Term concludes, that issue is going to come home to the Court with a vengeance. The Court will be swept into a maelstrom of controversy centered on perhaps the largest domestic issue of our times: how much power does or should government have to regulate corporate behavior. To some extent, this reaction to the Court will quickly move beyond what's actually involved in some of these cases. If the Court overturns Skilling's conviction, for example, the Court might do so as part of a series of cases that hold the "honest services" statute unconstitutionally vague; and that statute has been used more to prosecute government officials than corporate executives. But coverage of the Court, from both academics and the media, has become as polarized and unnuanced as everything else in our hyperpolarized political culture. The fury Congress is currently directing to Goldman Sachs will turn to the Court.

There will be a ready stage on which to present this drama: the confirmation process. Not only will the focus shift from the cultural issues that have dominated hearings in recent decades to economic ones, but Congress will have a much more direct stake in the issues. Unlike the cultural issues, where the Court is typically confronting state laws, here the Court would be holding unconstitutional national statutes involving Congress' regulation of the national economy. Will the anticipation of this drama, already foreshadowed in the reaction to the Court's Citizens United decision, influence who gets nominated to the Court? I have thoughts on that, for another post, but I wonder what others might think about the effect on the Court and the confirmation process of this looming drama.
Posted 2:06 PM by Rick Pildes [link]