Upon what meat hath our judiciary fed in growing so great? The meat of modern liberalism, the animating doctrine of the regulatory and redistributionist state. Courts have been pulled where politics, emancipated from constitutional constraints, has taken the law -- into every facet of life.While I do not have time to go into this subject in detail right now, I can say this right now. The precedents that the United States Supreme Court used to nationalize our economy and our federal right came from those cases striking down state protections for its workers and state regulation of industries who happened to be involved in interstate commerce.
Mr. Will passes over that lengthy bit of history where Big Business controlled the federal government. Which looks like it will come back into power, if the following is any indication of what is really going on with the Supreme Court.
From Slate Magazine comes Big business's big Supreme Court term by Doug Kendall:
From The New York Times comes Supreme Court Inc.:"With the Supreme Court term moving past the halfway mark, corporate America's long-term investments in the federal judiciary are yielding impressive returns. The U.S. Chamber of Commerce's Robin Conrad gushed about a 'hat trick' of Supreme Court victories one day in February, telling the Legal Times, 'I don't think I've ever experienced a day at the Supreme Court like that.'"
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On that hat-trick day in February, the court issued three pro-business decisions, striking down state rules designed to prevent children from receiving cigarettes via the Internet (Rowe v. New Hampshire Motor Transport Association), blocking state courts from holding manufacturers liable for the harms caused by defective medical devices (Riegel v. Medtronic), and using a federal arbitration statute to protect corporations against state jury trials in contract disputes (Preston v. Ferrer). These were all "pre-emption" decisions, which means that the court found a conflict between a federal law and a state statute or decisions reached by state courts. In such a conflict, federal law trumps, and this led the court in these three cases to free corporations from state limits on their conduct.
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.
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What should we make of the Supreme Court’s transformation? Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus. With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business case
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