Legal Commentary

Jeff Rosen reports on the pro-business attitude of the SCOTUS. And numerous commentators have noted that neither the Rehnquist nor the Roberts Court has any special fondness for federalism. Somehow these accounts of the Court always seem to hint implicitly that the Court is guilty of hypocrisy in abandoning federalism and judicial deference to popular majorities.

But perhaps we should understand this new pro-business attitude as a sincere return of an essentially Republican Court to its 19th century roots in judicial activism.

The Paleo-conservative wing of the Republican Party denounced judicial activism in the wake of Roe. But the Paleo-conservative approach to the Constitution was never really at the heart of the Republican Party?s ideology. Suspicious of national regulation, international alliances, and elite values, Paleo conservatives are relative newcomers to Republicanism, becoming a leading faction of the Republican Party only after World War II in the Goldwater movement.

The original Republican Party of 1856-1945 -- the Party from its founding to the candidacies of Wendell Wilkie, Thomas Dewey, and Dwight Eisenhower -- was built on built on the foundation of nationalistic and elitist judicial power in the service of business. Led by a core of railroad lawyers and Republican ideologues like Stephen Field and David Brewer, the Republican Court of the Gilded Age held that the central purpose of the courts and Congress was to suppress interference with a national market by juries, trade unions, states, or any other subnational power. As Richard Bensel noted in The Political Economy of American Industrialization, 1877-1900, at 289-354 (2000), Republicans were direct descendants of the Whigs who were, in turn, the heirs of the Federalists. As late as the 1890s, Boss Platt of New York, the Republican leader of New York, declared that he adhered to ?the Hamiltonian theory of politics,? meaning something like nationalistic suppression of local populism in the name of a unified national market. (Richard McCormick, the Party Period and Public Policy: American Politics from the Age of Jackson to the Progressive Era 293 (1986)).

The revival of Hamilton?s reputation by leading conservatives ? among others, David Brooks and Richard Brookhiser ? is a sign that this earlier version of the Republican Party is growing in popularity among conservative intellectuals. (For a recent account of the revival, see the Boston Review)

The 19th century Republican revival is spreading among judges as well. We are in the midst of a second Gilded Age, in which appointees of either pro-business Democrats (Clinton now, Grover Cleveland then) or pro-business Republicans, dominate the Court. The central thrust of this judicial majority is that judicial creativity in the service of a national market is entirely legitimate. Thus, this Court has crafted a set of doctrines regulating punitive damages and preempting state laws that seem anomalous if one believed that the Court should respect popular democracy. But these doctrines form a principled doctrine entirely consistent with the older Federalist-Whig-Republican tradition of jurocracy. If one sees the courts through Gilded Age lenses, as bulwarks of the national market against parochial and populist local democracy, then we?ve entered a second Gilded Age.

Expect our second Gilded Age to end only when a major economic depression forces one of the two political parties to go populist. The Depression of 1893 forced the Democratic Party to denounce the labor injunction for the first time, eventually leading to the radical appointment of a labor lawyer, Brandeis, the first justice since Taney to reject judicial activism in the service of the national market in favor of local democracy. The Depression of 1929 led to the appointment of Black, Frankfurter, Cardozo, Jackson, Douglas, and Murphy who watered down the dormant commerce clause, contract clause, and due process clause to accommodate major expansion of state power, even when such power obviously interfered with a national market.

So stay tuned: If 2008 turns out to be the year of another Great Crash, expect President Obama or President Clinton to appoint a few populists to the Court ? and say good-bye to those opinions trumping punitive damages and preempting state laws.

At least, speaking as a populist myself, I hope that any economic cloud will have at least this meager silver lining.