Legal Commentary

As Gordon Smith and Larry Ribstein have discussed, this week's NYT Magazine has an article from Jeffrey Rosen on the Supreme Court's pro-business tilt.  The article brings an overlooked issue to the fore, and it's great to see both the article and the blogosphere commentary that is already developing.  (For example, Larry Ribstein mentions the influence of Henry Manne, who no doubt played an important role.)

I wanted to highlight a side issue that is brought up toward the end of the article.  To the extent that the current court is pro-business, will that tilt be continued by the next President?   Rosen says this about the Democratic nominees:

As for Barack Obama and Hillary Clinton, both have sounded increasingly populist notes in an effort to attract union and blue-collar supporters, ratcheting up their attacks on corporate wealth and power, singling out the drug, oil and health-insurance industries and promising to renegotiate the North American Free Trade Agreement. But despite their rhetoric, it is not clear that either candidate would actually appoint justices any more populist than Bill Clinton?s nominees. ?I would be stunned to find an anti-business appointee from either of them,? Cass Sunstein, who is a constitutional adviser to Obama, told me. ?There?s not a strong interest on the part of Obama or Clinton in demonizing business, and you wouldn?t expect to see that in their Supreme Court nominees.?

My first impression is to wonder whether Sunstein's quote is a lesser-order offense of the same variety as Austan Goolsbee's -- namely, a reassuring word to other economic elites that contradicts the candidate's more populist message.  Since Sunstein is an advisor to Obama, isn't this another example of a-wink-and-a-nod to the press, academia, and other elites that some of the "demonizing business" rhetoric is just for show?  (Sunstein also has a commentary piece, "The Obama I Know," that says that Obama " is strongly committed to helping the disadvantaged, but his University of Chicago background shows he appreciates the virtues and power of free markets. ") 

Some commentators (such as Josh Wright and David Zaring) questioned whether Goolsbee's alleged comments were all that important.  I think they became important because they highlight an issue that has not really been resolved yet -- what does Barack Obama actually believe on economic issues?

Obama has been perceived as the candidate less appealing to economic populists.  Polls have shown Obama lagging behind Clinton amongst those who make less than $50,000.  On the flip side, Obama is more appealing to those Democrats who with higher incomes and more advanced degrees.  (See, for example, this Kurt Andersen article on presidential election demographics.)  Moreover, the media has been accused of being enamored of Obama; he has a "cool" factor that seems particularly in evidence amongst decision-leaders.  Obama has used this to his advantage; this article describes how Obama has had fund-raising success with a new generation of hedge fund managers and investment bankers, thanks in part to his "rock-star" image.

The tacit assumption has been, perhaps, that Obama's economics would mirror his supporters'.  That he would be more pro-market, more new-wave than New Deal, in his approach.  Of course, one can go to Obama's website and check out his "issues" section.  There, one would learn that Obama wants to cut taxes for the middle class, amend NAFTA, pass the Employee Free Choice Act, and reform the bankruptcy laws.  But such platforms are often just the opening stance in an ever-changing dialogue between candidates and voters.  (Putting People First is one more extended example.)  That's why Goolsbee's words got so much play -- they seemed to indicate what Obama "really" thought about NAFTA.  (See this Mankiw commentary for someone who was in fact reassured by the Gooslbee flap.)

However, it is also worth noting that Obama has worked as a community organizer and was influenced by Saul Alinsky. (See here for a positive spin on the association and here for a negative one.)  After college Obama worked with the low-income Chicago residents to ameliorate the dislocation and massive unemployment caused by the closing and downsizing of southeast Chicago steel plants.  It's not hard to see a connection between the continuing loss of American manufacturing jobs and NAFTA.  Obama also seems comfortable with and proud of his time as an organizer.  As his wife once said, ""Barack is not a politician first and foremost. He's a community activist exploring the viability of politics to make change."

It is nothing new to note that Obama's popularity may in part rest on the ability of others to see what they want in him.  But like any politician relatively new to the scene, his ultimate success will depend on how he is defined by others.  The Sunstein quote is just another bit of data about Obama and his political instincts.  It will be interesting to see how it fits into the broader picture.