I find it really hard to take the Anthony Lewis New York Review article on The Nine all that seriously. As Ed notes below, Lewis complains about eight “critical” 5-4 decisions that were “radical departures from precedent.” Yet Lewis’ article is highly misleading, overly selective, and, at times, flat wrong. For an example of the latter, it is simply false that the Court’s Hein decision overruled any prior decisions, “covertly,” or otherwise. There are ample grounds for critiquing the Court’s holding in that case, but failure to follow precedent is not one of them. I also think it is also noteworthy that Lewis fails to address important cases that fail to support his claims, and even misrepresents some of the lower profile cases in the course of exaggerating the Court’s alleged rightward tilt.
A good example of the former is that Lewis makes no mention of the Court’s most momentous, and precedent altering, 5-4 decision of last term, Massachusetts v. EPA. As Ronald Cass explains here, the decision ran roughshod over many well established principles of administrative law. It further invented a new doctrine of “special solicitude” for states seeking standing to challenge federal agency regulations (an issue I discuss here), and resolved other questions of first impression, such as the proper standard of review for challenges to agency denials of rule-making decisions. These changes and holdings are significant, yet they were apparently unworthy of mention by Lewis because the decision produced a “liberal” result.
Lewis did not ignore Mass. v. EPA because it dealt with seemingly esoteric legal issues, as he happily cited lower profile cases concerning complex issues where they would support his thesis. So, for example, he cites Leegin Creative Leather Products, an antitrust case, as one of the “radical departures” he decries. Yet he misrepresents the case to make it seem far more “radical” than it was. According to Lewis, the Court rejected a long-standing rule that “proice-fixing agreements” are per se antitrust violations. Yet that is not what Leegin held, though I suspect few of Lewis’ readers know enough about antitrust law to catch it. Leegin held that vertical resale price maintenance agreements, such as when a manufacturer sets a minimum price for its own goods sold by retailers, should be evaluated by a “rule of reason” instead of the per se rule of illegality. This is hardly the typical “price fixing” arrangement that drives antitrust concerns. Leegin did overturn a long-standing precedent, but it was precedent widely recognized as an anachronism in contemporary antitrust law. A reasonable argument can be made that the Court should have stuck with the old rule, leaving it to Congress to make any necessary changes, but it is hard to argue that there was anything particularly radical about the Leegin holding. Further, if “public feeling” justifies overturning precedent, as Lewis claims elsewhere in the article, it would provide further support for the decision, as most antitrust scholars were critical of the old rule.
Lewis was once a serious commentator on the Supreme Court and legal questions. Yet this article in the New York Review suggests those days are behind him.