Professor Bainbridge...on law, politics, religion, culture & food

Business’ Winning Streak in the SCOTUS

Jeffrey Rosen claims there has been an ideological shift on the Supreme Court to a pro-business stance:

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.

Jack Balkin theorizes:

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. ...

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.

And Balkin predicts:

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.

Larry Ribstein opines:

I certainly sympathize with the Court’s pro-business move. ... But while I don’t consider myself a “conservative,” I think the Court’s rejection of what Rosen calls “state’s rights” [in NYT-speak] in favor of a broad view of federal power is not entirely a good thing, even for a pro-business type. ...

Yes, the states have overreached, particularly in empowering the trial bar, and we’ve seen, particularly recently, the corruption underlying this overreaching. But we must remember that federal law is not without its flaws, and its flaws are compounded by the high costs of exiting a federal regime.

As I’ve often argued, ... a business-friendly alternative to broad federal preemption: enhancing parties’ power to contract for the applicable state law. ... The market for law offers a way to get competition and evolution of legal rules while enabling firms to avoid the Mississippi swamps and duplicative and costly state regulation.  I think business will come to see the attractions of this approach, particularly when it realizes in coming years that Congress may not be entirely pro-business.

Gordon Smith concludes that Rosen’s article:

… makes for fascinating reading. Especially the part where Ralph Nader “all but conceded defeat in the battle for the Supreme Court.” You really need to read the whole thing.

Indeed, do go read the whole thing.

Update: Matt Franck notes:

Somehow, without even implying anything improper, corrupt, or even noticeably politicized about the Court’s jurisprudence in recent years, Rosen manages to convey the sense that there is something malodorous about people organizing, focusing their efforts on legal affairs, hiring the best lawyers, developing successful litigation strategies and persuasive arguments, and . . . winning.

A fair point. The Rosen pieces does carry that implication. My guess is that a lot of liberals are annoyed because business took a page out of the civil right’s playbook. Wasn’t it the NAACP Legal Defense Fund that basically invented the use of “ a consistent and coherent litigation strategy that repeatedly brings those claims before the courts”? Although, I suppose there were antecedents for that strategy in earlier progressive legal campaigns, such as those waged by Louis Brandeis before he went on the Supreme Court. Anyway, it’s always annoying to discover that what’s good for your goose is also good for our gander.