In the Coming Debate over the Supreme Court Nominee

By April 28, 2010Briefly Legal

Some activists, partisans and agenda-driven journalists have argued that the current makeup of the U.S. Supreme Court is “pro-business.” The facts do not support the invidious claim, but we’ll be seeing it more and more as the debate nears on the President’s nominee to replace the retiring Justice John Paul Stevens.

Glenn Lammi of the Washington Legal Foundation debunks the contention in a post at WLF’s new blog, The Legal Pulse, “People for the American Way’s Wayward Attack on High Court, Free Enterprise“:

If the Court is so decidedly “pro-business,” then how can [People for the American Way] explain cases like last year’s Wyeth v. Levine, which allows state failure-to-warn lawsuits against makers of FDA-approved drugs? If it feels the Court openly advances the interests of tobacco producers, how does one account for the 2008 ruling Altria Group v. Good, which allowed state consumer fraud suits against such companies to go forward?  Or three decisions from this year, Jones v. Harris Associates (unanimously allowing shareholder suits vs. investment advisors), Shady Grove Orthopedic v. Allstate (Scalia majority opinion permitting federal class action lawsuits in a state which prohibits such suits), and, just issued this morning [Tuesday], Merck v. Reynolds (unanimous Breyer opinion permitting securities fraud suits involving Vioxx to proceed)?

At Bench Memos, Ed Whelan addresses the parallel phenomenon, that of attacking the Roberts court for its supposed judicial activism. Whelan makes his point in debunking a column by The Washington Post columnist E.J. Dionne. From “Wrong-Way Dionne“:

As I understand it, three of Dionne’s four examples of “areas” of supposed conservative judicial activism—“pay discrimination” (by which he apparently means the Court’s single ruling in Ledbetter v. Goodyear Tire & Rubber Co. on the EEOC filing deadline for Title VII claims), “antitrust laws” (by which he apparently means the Court’s single ruling in Leegin Creative Leather Products v. PSKS, Inc., that rejected the position that vertical resale price maintenance is per se illegal), and “worker safety regulation” (I don’t know offhand what case he might be referring to)—involve rulings on issues of statutory interpretation that can readily be revisited by Congress. Even if one were to indulge the (highly dubious) assumption that the Court got it wrong in these cases, it’s simply ludicrous to compare such cases to liberal judicial activist rulings that invent constitutional rights and that thereby deprive the American people of the ability to legislate on those matters.

Indeed, Congress passed legislation that overturned the Ledbetter decision (actually, it went much further than that), and is considering legislation to reverse Leegin. In making their rulings in these cases, the justices read the law that Congress passed. Now some in Congress want the law to be different. But that’s not because the court is “activist” or “pro-business,” it’s because the majority of Congress has changed its positions from when the two laws were passed.

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