Court Appointments Matter

By June 30, 2007Briefly Legal

Today’s Wall Street Journal on the just-completed Supreme Court term, “A Cautious Right Term.”

A Supreme Court Justice once told us never to underestimate the difference even a single new Justice can have on the nine-member body. We certainly learned that lesson this year, the Court’s first full term with Associate Justice Samuel Alito. The Court has moved notably back to the center, but its alleged new “conservatism” is more in temperament than politics.

And, especially important (with our emphasis):

The good news is that the Court did set clearer rules this year on several notable business cases, which united Justices on both the right and left in solid majorities reining in class-action lawsuits, employment law and patents.

In Credit Suisse First Boston v. Billing earlier this month, a seven-Justice majority dismissed an antitrust claim against investment banks from the days of the hi-tech bubble that would have been a tort lawyer’s dream. And in the antitrust case of Bell Atlantic v. Twombly, seven Justices dismissed the idea that the mere suggestion of a conspiracy was enough to bring charges of anti-consumer collusion. The press is calling these “pro-business” rulings, but it’s more accurate to say they were about restoring business confidence in the rule of law and setting limits on the tort bar and activist judges.

UPDATE (4:40 p.m.): You know what also matters? The freedom — the constitutionally guaranteed freedom — to influence the political process, including by pressuring candidates, that determines the selection of judges. From the D.C. Examiner:

The first blow came Monday in FEC v. Wisconsin Right to Life Inc., when the Roberts court struck down as unconstitutional a key provision of the Bipartisan Campaign Reform Act of 2002. The offending provision banned certain broadcast political ads mentioning the names of specific candidates — i.e. incumbent congressmen — during the 60 days prior to a general election and 30 days before a primary balloting.

The chief justice noted in the decision that the First Amendment requires a strong presumption against official censorship of political speech. And in a refreshingly direct statement, Roberts threw out the idea that federal bureaucrats can constitutionally assess the propriety of political speech based on the speakers’ intent.

“Enough is enough,” Roberts said. We can almost hear the founding generation that gave us America saying “hear, hear!”

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