Beyond profits
by digby
Jeffrey Rosen wrote this in the NY Times Magazine in June of 2008, nearly four years ago:
Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes.[…]
Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars. In the current Supreme Court term, the justices have already blocked a liability suit against Medtronic, the manufacturer of a heart catheter, and rejected a type of shareholder suit that includes a claim against Enron. In the coming months, the court will decide whether to reduce the largest punitive-damage award in American history, which resulted from the Exxon Valdez oil spill in 1989.
And they did reduce that punitive-damage award, as we know. David Souter, one of the court’s “liberals,” wrote the opinion.
The hot-button issues of gun rights and Roe get all the ink, but ex-corporate lawyer John Roberts has really revolutionized the nation’s highest Court, and on issues with business interests at the forefront he have shown himself and his Court extremely willing to ignore precedent and to act in an activist fashion
Luckily the moderates on the court seem to have wised up. The question is, what does the Roberts Court really think is a business interest?
I suspect that many people believed that because Obamacare was so deferential to the insurance industry — essentially forcing 30 million new customers to buy their product, even if it might be for their own good — that the court would naturally uphold the law. After all, it was good for business. But it didn’t seem to go that way.This new article by Jeffrey Toobin about the Obamacare oral arguments shows how weird it really was:
Last week, however, the conservative Justices were showing no deference to Congress, especially on economic matters. The questions from the quartet of Kennedy, John G. Roberts, Jr., Antonin Scalia, and Samuel A. Alito, Jr., amounted to a catalogue of complaints about the Affordable Care Act. (Clarence Thomas, their silent ally, presumably was with them in spirit.) In particular, they appeared to regard the law as scandalously cruel to one party in the debate—and it wasn’t the uninsured. The Justices’ own words revealed where their sympathies lie. Roberts: “If you’re an insurance company and you don’t believe that you can give the coverage in the way Congress mandated it without the individual mandate, what type of action do you bring in a court?” Scalia: “That’s going to bankrupt the insurance companies if not the states.” Alito: “What is the difference between guaranteed-issue and community-rating provisions on the one hand and other provisions that increase costs substantially for insurance companies?” Kennedy: “We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended.”
It would seem that no pro-business Democratic policy is going to be quite good enough to protect the oppressed minority corporations from the predations of average citizens.
There’s been a lot of commentary exposing the conservative members’ hackish rhetoric and ignorant lack of understanding of how the health care market works. But that’s not really the issue for these people. These conservatives’ first principle is that government regulation of industry is an impingement of corporations’ constitutional rights.
They are as activist as it is possible for a court to be, which, let’s be honest here, is not unprecedented. But while the Warren Court took up the cause of individual human rights, the Roberts Court is trying to liberate wealth and property from the shackles of forced social responsibility. It’s all about rights and freedom but it depends on whether you think those concepts rightly belong to individual human beings or whether you think that business and property have a greater claim. I think it’s fairly clear what this court believes.
The one argument I’ve heard that could lead someone to think there is a possibility that this court would temporarily stall its own long term agenda is the idea that striking down this mandate puts a big crimp in the Social Security privatization scheme and the financial industry really wants its hands on all that money. Unfortunately, their confused and misplaced worries about the insurance industry argue for the idea that their “principles”, such as they are, outweigh the profits of the industries they seek to protect if those profits derive in any way from government coercion. I’m not sure even business knows where that might lead, but I’m guessing that at some point there will be some dissonance on the right.
Of course, they are also seeking to remove the government’s ability provide similar services for ordinary Americans so what may seem like a principled stand against crony capitalism is really a radical plan to turn our society into a Hobbesian nightmare. If you have enough money, you have nothing to worry about.
And hey, Galt’s Gulch will be there for those of you talented producers who deserve to live like dignified human beings. I suspect it will be a lot like Las Vegas but without all the icky middle class and poor people.
Update: I have a sneaking suspicion that the president lecturing the Court about legitimacy and judicial activism might not carry a lot of weight with them.
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