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THE CHAMBER'S CHAMBER.
Jeffrey Rosen performed an important service this weekend with a pretty thorough accounting of the Supreme Court's increasing kinship with big business. And we're not just the Roberts and Alitos of the world, but the Ginsbergs and Breyers. The Chamber of Commerce, in fact, was the first organization to endorse Breyer. Their imprimatur helped quiet Republican opposition, and Breyer slid through with 87 votes. “Frankly, we didn’t feel like we had anyone on the court since Justice Powell who truly understood business issues,” [said Robin Conrad, head of the Chamber's litigation Department.] “Justice Breyer came close to that.”
Of course, Breyer is thought of as a liberal judge, and given the tilt of the Court, he's certainly what passes for a liberal judge at the moment. But that's a function of the Court's swing right on the one hand, and the strange preeminence social issues have in our discussion of the Court on the other. Nominees are evaluated as liberal and conservative based first on their positions on abortion and second on their other positions on abortion and third on their attitudes towards affirmative action. There's really no fourth. But their take on economic issues, on labor regulations, and on corporate oversight are arguably of equal importance, and certainly of enough importance to seriously consider. But either because those cases are hard to explain during a nomination fight or because they're not considered dramatic testimony, the whole of a nominee's economic jurisprudence gets tabled, or even ignored. And so Clinton nominates the best judges the Chamber has seen in a generation, and Bush nominates the best judges they've seen since Hoover. It's a problem. And not one that will just go away when Bush leaves office.
Indeed, for a look at how far right the Court has swung since the 70s, I highly recommend the article Cass Sunstein wrote for us a couple months back on John Paul Stevens odd migration from centrist to leftist -- a shift he was able to make without changing any of his opinions. It's eye-opening stuff.
(Image used under a Creative Commons license from Flickr user Mindgutter.)
COMMENTS (4)
I came away from that article thinking Ginsberg isn't SO bad -- she was the dissenting voice on an 8-1 court decision for example, lamenting that Congress couldn't possibly have meant to be so pro-business in the law under question. Also, Rosen's article sort of stated that Scalia and Thomas are more pro-states rights than pro-business without really giving many example. If they're so different, why don't they vote the other way on some of these cases?
Posted by: Chris O. | March 17, 2008 8:48 AM
"because those cases are hard to explain during a nomination fight or because they're not considered dramatic testimony"
These cases are no more difficult to explain now than they were seventy years ago. The difference is that the press simply will not cover class issues any more. Partially it's because beginning with Clinton, the Democratic party gave up on being the party of the working class and decided to become the party of new capital. Partially it's because the press itself has been lobotomized by corporate control. We've almost got to the point that if a legal issue isn't somehow about sex - and abortion and gay marriage are about sex, however tangentially - it doesn't exist.
As for Stevens - he is as non-ideological a judge as can exist on the high court. He's a pure umpire, judging according to received rules as best as he can apply them. The reason he seems "liberal" is that the right wing of the court is engaged in changing the rules, while Stevens is trying to hold to the status quo.
Posted by: Anonymous | March 17, 2008 8:50 AM
Why do liberal judges render "pro-business" decisions? Because litigation is a stupid way of addressing class issues. If you think rich people have too much money and middle-class and poor people should have more, tax the rich people and give the money to the people you think should get it. That's the efficient way to do it. Giving people lottery tickets to win windfall lawsuits is wildly inefficient by comparison, particularly given that a third of the money goes to lawyers right off the top.
Posted by: alkali | March 17, 2008 11:01 AM
This court isn't just conservative, it is flat out fascist. I'm not using that word as a pajorative, it is a genuine description.
The government and the courts function for no other reason these days than to make it easier for corporate take overs
Posted by: Tony | March 17, 2008 4:43 PM