U.S. Supreme Court: Populism and Business

Noam Scheiber reported in Saturday’s New York Times that, “The Supreme Court vacancy created by the death of Justice Antonin Scalia highlights a growing rift between the country and the nation’s highest court on questions of economic power and support for big business.

“And that gap, legal experts say, is unlikely to be significantly narrowed by the kind of justice President Obama — or the next president, Democrat or Republican — is expected to nominate.

“Americans have grown substantially more populist in their outlook over the last 15 years, according to some measures of public opinion, like whether they are satisfied with ‘the size and influence of major corporations,’ and whether the government should ‘redistribute wealth by heavy taxes on the rich.’ Indeed, if the presidential primaries are any indication, there is perhaps no more potent force in American politics today than economic populism.”

However, the article noted that, “At the same time, some argue that the Supreme Court under Chief Justice John G. Roberts Jr. has become perhaps the most business-friendly court in recent history. A 2013 study by Lee Epstein of Washington University in St. Louis, William M. Landes of the University of Chicago Law School and Judge Richard A. Posner of the federal appeals court in Chicago ranked justices according to their rulings in cases involving business. The findings, which Ms. Epstein and Mr. Landes updated through the 2014-15 term for this article, show that six of the 10 most business-friendly justices since 1946 sat on the Supreme Court at the time of Justice Scalia’s death.

President Obama has given little indication that he is likely to reverse this trend. Both of his previous nominees, Sonia Sotomayor and Elena Kagan, have been relative moderates on matters involving business, despite some progressive opinions in specific cases.”

Saturday’s article added that: “A variety of factors can help explain the demise of economic populism on the Supreme Court, where it once had a solid constituency. In recent decades, business interests, led by the U.S. Chamber of Commerce, have played a much more active role in the confirmation battles over Supreme Court justices.

“There is also the increasing partisanship of the United States Senate, which can prompt a Democratic president to select more moderate nominees in the hope of winning Republican votes.

Most important, however, may be a broad pro-business consensus within the upper ranks of the legal profession, one that has been more than two generations in the making.”

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