Bench Memos

Law & the Courts

‘Divided Court Worries Business’?

That’s the odd title of the lead article in the print edition of today’s Wall Street Journal – odd because it seems to suggest that American business has more reason to worry about a divided 4-4 Court than about a 5-4 liberal majority that would be deeply hostile to business interests on the class-action litigation questions that are the centerpiece of the article. In other words, if a divided Court worries business, a liberal Court ought to terrify business.

Consider this passage about Dow Chemical’s decision to settle a case instead of pursuing Supreme Court review:

Any deadlock in the Supreme Curt could leave intact decisions by lower courts. That could have spelled bad news for Dow, which had appealed a 2013 court ruling.

The article goes on for a few paragraphs to discuss the “unknowns” (in the words of Dow’s spokeswoman) that Dow faces but never makes the obvious point that Dow’s calculus surely included the prospect that Scalia’s vacancy might be filled with another liberal.

But perhaps it’s some of the representatives of American business, not the reporter, who are remarkably obtuse. Consider this closing passage:

Veta T. Richardson, chief executive of the Association of Corporate Counsel, a Washington, D.C.-based organization of corporate lawyers, said large corporations remained concerned about how long it may take to fill the vacancy. “In order to assess risk, the business community likes to expect stability,” she said.

Does Ms. Richardson really thinks it’s her job to get stable bad rules for American business? Or is she instead pushing her own political agenda?

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