Friday, March 21, 2008

The Supreme Court and the Chamber of Commerce

This past Sunday, the New York Times Magazine printed an article by my GW colleague Jeffrey Rosen provocatively titled, "Supreme Court, Inc.: How the nation's highest court became increasingly receptive to the arguments of American business." In the article, Rosen describes a decades-long effort by the U.S. Chamber of Commerce to change legal jurisprudence in this country such that the Chamber's members (that is, large American corporations) would be more likely to win in court -- and by implication, less likely to be sued in the first place.

Rosen's article is characteristically well written and engaging, and I learned a lot from it. One can reasonably question whether Rosen puts too much emphasis on the importance of Supreme Court litigators, since he spends a great deal of time describing how the Chamber went about hiring the most brilliant legal minds it could find -- many, like Rosen, former Supreme Court clerks and thus presumptively brilliant. These star litigators then went on to win various cases in front of the Court. One of these stars was so "dazzling" in an argument before the Court that her side won in a unanimous decision. I'm sure that I am not alone in suspecting that 9-0 decisions do not hinge on the performance of superstar litigators; but even if my suspicion is right that the Court was going to find in favor of a major corporation in such a case no matter who did the talking, that could merely mean that Rosen is otherwise correct that the Chamber of Commerce has succeeded in changing the law and the composition of the Court to the liking of big business.

Rosen certainly caught my attention with a quote from Ralph Nader to the effect that Nader's young public-interest lawyers are quitting because they're tired of losing so often. Rosen's cause-and-effect might be a bit overstated, in other words, but there is probably a strong case to be made that the legal landscape (including the Supreme Court) has become much less receptive to 60's-style public interest arguments and more receptive to the arguments of the Chamber's members.

I was, however, caught a bit off guard by Rosen's description of the Court's "pro-business jurisprudence" as reflecting a consensus among "liberal and conservative elites about the value of free markets." He suggests that these elites have "come to share a relatively laissez-faire, technocratic vision of the economy" and that this vision explains the turn in favor of big business. Discussing one example, Rosen quotes his source at the Chamber of Commerce as describing Arthur Andersen's win before the Court (overturning a criminal conviction for document destruction related to Enron) as "a very important win for big business."

We thus have at least four concepts being used interchangeably here: pro-big business, pro-business, pro-free markets, and laissez-faire. This is not the forum in which to explore all of the ways in which these things differ (for two takes on this from the right side of the political spectrum, see here and here), but it should at least be obvious that big businesses and small businesses often have conflicting agendas, that businesses of all kinds have incentives to make markets less "free" (if only because more competitive markets tend to have lower profits than less competitive markets), and that laissez-faire has no coherent meaning because the laws that make markets work (contract laws, tort laws, criminal laws, securities laws, corporate laws, and on and on) are the creations of government.

These points are extraneous to Rosen's story, but it would be helpful if commentators (and Rosen is hardly alone here) would cease conflating the interests of General Motors with free markets, capitalism, and the American Way.

Posted by Neil H. Buchanan