In my latest FindLaw column (now available here), I use the occasion of the enactment of California's trans fat ban to explore how a fundamental premise of early American federalism has been largely eroded by the integration of the national economy. The premise was that substantial portions of the economy truly were local, so that states could be given primacy over them. I explain how, absent federal regulation, interstate firms are likely to comply with the most stringent state regulatory regime, and then to seek federal laws that set lower standards while preempting state laws. Along the way, I link Clarence Thomas to the anti-bigness tradition of Thomas Jefferson and Louis Brandeis.
Here I want to problematize that linkage by noting that Justice Thomas seems every bit as committed to the big business agenda of the conservative wing---indeed of all nine members ---of the current Supreme Court. To put the point in a way that doesn't single out Justice Thomas, it's striking how economic populism seems to have no voice at all on the current Court. Populism per se gets some representation, as when Justice Scalia, dissenting in Romer, accuses his colleagues in the majority of taking sides in the culture war. But economic populism is essentially invisible. Jeff Rosen's piece in the March NY Times Magazine, Supreme Court, Inc., pretty accurately captures the point.
Now the question: How come? Economic populism is not the dominant ideology of contemporary American politics, but surely it is a powerful force on both the left (John Edwards) and the right (Pat Buchanan/Mike Huckabee). The answer, I think, is that it's just about invisible in the legal elites of left and right. The right is positively hostile to what would count as economic populism in law, through its support of tort reform and the law & econ movement. And meanwhile, the left is at best indifferent. Liberal legal elites tend to oppose draconian tort reform but they (make that "we") tend to be much more interested in civil rights plaintiffs than in other tort plaintiffs. With rare exceptions, elite law schools do not produce plaintiff-side tort lawyers.
That's not to say, of course, that the only way one could be an economic populist judge would be by first working as a plaintiff-side tort lawyer, but it does explain why the sorts of people who are most likely to be economic populists in law are unlikely to become federal judges.
Posted by Mike Dorf