Legal Commentary

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.

Full post as published by Balkinization on March 16, 2008 (boomark / email).