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The Chamber of Commerce Court Strikes Again

[ 17 ] July 15, 2011 |

I have an article up at the Prospect about the worst Supreme Court decision you probably didn’t hear about this term.   Well, actually, I should clarify that according to what we’ll charitably call the “logic” of the Supreme Court’s Republicans, I didn’t make any of the statements that appear under my name at all.

Since LGM prides itself on being fair and balanced, I should note that according to Ramseh Ponnuru the Court is not nearly pro-business enough.   Ponnuru being smarter and better-informed than your typical conservative pundit, there are actually some truths expressed in the course of his column.   But to borrow Scalia’s paraphrase of Churchill, what’s relevant isn’t true and what’s true isn’t relevant.    Yes, Roberts and Alito are even more reflexively pro-business than Scalia and Thomas, and yes the Court lacks anything remotely resembling a Brennan/Marshall-style liberal, both points widely acknowledged by the Court’s critics and, if anything, more supportive of the critic’s position than Ponnuru’s.    As to the more general claim that, despite its very pro-business record, a Court that is willing to hold that financial executives didn’t “make” statements they made in order to insulate them from accountability when they rip off their customers isn’t pro-business enough…let’s just say I continue to demur.

Comments (17)

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  1. Matt says:

    Apparently in Ramseh’s dream-world, a “pro-business” court would pretty much overrule any decision that hurt the delicate fee-fees of *any* business for any reason.

    One wonders if he’s thought this all the way through – such a court would likely also uphold the right of business owners to refuse him service for “lookin’ like a furriner”…

  2. Oscar Leroy says:

    yes the Court lacks anything remotely resembling a Brennan/Marshall-style liberal

    Who do we blame for that? George Bush? Rupert Murdoch?

    Also, when is Elena Kagan going to start using her legendary powers of persuasion to head off some of these bad rulings?

    • rea says:

      Yes, why, oh why did not Obama appoint, instead of Kagan, someone who could convert Scalia to liberalism by force of personality? Just goes to show that Obama is a secret Republican . . .

      • Come now, rea. Haven’t events pretty definitively proven that the Senate would have been happy to approve the nomination of, say, Harold Koh to a high court position?

      • dangermouse says:

        Yes, why, oh why did not Obama appoint, instead of Kagan, someone who could convert Scalia to liberalism by force of personality

        That would be a pretty ace comeback if it weren’t actually supporters of Kagan who argued that she could convert Scalia by the force of her centrism, while people arguing for a more liberal justice never made any such claim.

        But you know, I mean. Aside from that.

        Sickburn.

      • jim48043 says:

        Read Scalia’s dissent in Von Raab. It includes this gem:

        There is irony in the Government’s citation, in support of its position, of Justice Brandeis’ statement in Olmstead v. United States, 277 U. S. 438, 277 U. S. 485 (1928) that “[f]or good or for ill, [our Government] teaches the whole people by its example.” Brief for Respondent 36. Brandeis was there dissenting from the Court’s admission of evidence obtained through an unlawful Government wiretap. He was not praising the Government’s example of vigor and enthusiasm in combatting crime, but condemning its example that “the end justifies the means,” 277 U.S. at 277 U. S. 485. An even more apt quotation from that famous Brandeis dissent would have been the following:

        “[I]t is . . . immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.”

        Id. at 277 U. S. 479. Those who lose because of the lack of understanding that begot the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us — who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.

        (emphasis added)

        Scalia in fact may be more respectful of individual liberty and constitutional rights than is Kagan, and he certainly is more so than is Breyer, as shown by Crawford v Washington and its progeny

  3. efgoldman says:

    Ponnuru being smarter and better-informed than your typical conservative pundit…

    Objection, counselor. Assumes facts not in evidence.

  4. Ken Houghton says:

    Oh, you noticed that one, eh? Nice piece, but Konczal was there weeks ago, and he’s wasn’t exactly early to the party.

    The real “obscure” SupCt decision of the year is the one allowing Jim Rogers’s people to continue destroying my kids’s lungs by putting even more sulfur into the Midwestern air and treat it after that as if they are Werner von Braun.

  5. H-Bob says:

    Let’s see — the Court gave inchoate entities (e.g., corporations) a right to “freedom of speech”. Since the inchoate entities are mute, they need people to “speechify” for them, so the Court had to rule that corporate executives are merely the ventriloquist dummies for the corporations, otherwise the corporations’ freedom of speech would be mooted and also would violate the Americans With Disabilities Act. Since the executives are merely “channelling” the speech of the corporations, the executives should not be held personally liable for what is the corporations’ speech!

  6. Pyre says:

    It depends on what you mean by “business”:

    1. If as in “a business” (=”company/corporation”), the Court was surely pro-the-businesses-that-choose-to-lie — as long as they delegate the dirty work to puppet corp.s — but not pro-the-businesses-that-mistakenly-invested-in-them.

    2. If as in “doing business” (=”trade/capitalism”), I’d call this an anti-business ruling. It undercuts the trust-in-honesty that our system of trade requires.

    So, yes, I agree with Ramseh Ponnuru: the Court is not nearly pro-business enough.

    “Look past today’s scandals and you’ll find that capitalism has always been founded on trust, honesty and decency. That’s the only way it works.” — James Surowiecki, “A Virtuous Cycle”, Forbes Magazine 12/23/2002.

  7. Yesca_Again says:

    Game On! The logic & end application of this, any corp allusion,specific or not, on any aspect of product/service is not binding to the claimer. Truly buyer beware. Claim food is safe, people die, you can keep selling it.

    The Supreme Court will just reject the case, as frivolous.

    Can I renege on all the contracts promises I claimed something & it’s OK! Alright, Game On!

  8. jackd says:

    according to Ramseh Ponnuru

    That would be “Ramesh”.

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