July 03, 2005

The Corporate Judiciary

There's a fascinating article in the Washington Post today about how Sandra Day O'Connor was quite the business-friendly justice. "If anyone up there could have been tagged pro-business," says one clerk, "O'Connor would have been the one." Obviously she wasn't as pro-business as she could've been; looking at her swing votes, she upheld the EPA's authority to enforce the Clean Air Act, and upheld restrictions on campaign finance, for instance. But overall, she was even better than Antonin Scalia and Clarence Thomas—who would sometimes let the Founding Fathers get in the way of a good business deal—on these issues.

Now my guess is that, regardless of what he's said about the virtues of originalism in public, Bush might well prefer to nominate someone with similar O'Connor-esque sensibilities on business, rather than someone who cares terribly much about seeking out a right-wing "originalist" view on the Constitution. These two views can conflict after all: it's worth noting that the Lochner Court, which many seem to see as Bush's Platonic ideal of an originalist Supreme Court, actually upheld "far more economic regulation than it struck down." I doubt that's what Bush is aiming for. Nominating someone with a pro-corporate background might be something to watch for: read Michael Scherer's Mother Jones piece from 2003, "The Making of the Corporate Judiciary," to get a sense of the broader course the White House has been charting over the past four years. And the stakes here are quite high:
About 40 percent of the cases from the past two Supreme Court terms had direct consequences for business, according to an informal Chamber of Commerce study.

That pace is likely to continue, if not accelerate, said Quentin Riegel, vice president for litigation at the National Association of Manufacturers. The group counts 10 business cases on the court's docket for the next term, including whether a joint venture between Texaco Inc. and Shell Oil Co. violated antitrust laws in its pricing decisions. IBP Inc. v. Alvarez asks if employers must pay workers for time they spend putting on and taking off work uniforms and protective equipment.
Class warfare, baby. Now obviously any nominee also has to be good on the big Dobson issues (abortion, gay rights, the ten commandments), but that doesn't seem like too tough a needle to thread.
-- Brad Plumer 12:22 AM || ||