The central argument of the Democrats during the Kagan hearings has been that the current Supreme Court is activist on behalf of corporations. This conservative activism hurts the little guy, the argument continues, and Democratic nominees such as Kagan are needed to speak up for them. The Roberts Court has opened the floodgates to corporate spending on elections, limited the rights of workers to sue in cases of sex discrimination, and otherwise ruled in favor of business.
The truth is that neither the Roberts Court as a whole nor its conservative bloc has a bias in favor of corporations and that the Court’s liberals have supported many of the decisions the Democrats are now criticizing (and distorting).
This storyline gets its plausibility from a highly selective review of the Court’s recent terms. Consider that this Court twisted the text of the Clean Air Act to give the EPA the authority to regulate greenhouse gases. This Court, in Wyeth v. Levine, stripped pharmaceutical companies — and, by extension, other companies too — of the protection from state lawsuits that federal regulation might have been thought to give them. This Court enabled state lawsuits against the federally authorized activities of banks. None of the Court’s pro-corporate decisions come close to having the impact of these decisions. If the EPA raises energy prices, it will hurt bottom lines a lot more than liberalized rules for sex-discrimination lawsuits.
The global-warming case saw Justice Kennedy ally with the Court’s liberals. So is it the case that the four conservative justices, then, are reliably pro-corporate? No. In the Wyeth case, Justice Thomas went further than any of the other justices to expose companies to state lawsuits. Justice Scalia wrote the opinion in the banking case. Both justices reject the idea, held by other members of the Court, that the Constitution imposes limits on punitive damages.
As NRO contributor Ed Whelan explained in his testimony to the Senate, the decisions the Democrats are condemning are far more reasonable than they suggest. They claim that in the sex-discrimination case, for example, the Court ruled that the clock started running on the statute of limitations before the woman even learned about the discrimination. That’s simply untrue. They neglect to mention that the Exxon Shipping case, another in their parade of pro-corporate horribles, was written by then-Justice David Souter — whom liberals have been celebrating this very month for his allegedly enlightened view of judging. And they ignore the inconvenient fact that the flood of corporate advertising in political races that they keep warning against has so far been a trickle.
As it happens, this magazine disagreed with Justice Thomas in the Wyeth case, and believes that the Court should be more attentive to the ways that state governments can interfere with the nation’s commerce and thus frustrate the Constitution’s design. There is literally no dispute that protecting commerce from state-level schemes to exploit or block it formed much of the motive behind the Constitution in the first place. There would be nothing to be embarrassed about in following through on the Founders’ wishes, and there is nothing to respect in the Democrats’ case.