Working Paper No. 12-79:
Atlas Croaks, Supreme Court Shrugs

Author(s):

Michael Greve

Date Posted: November 2012

Availability:
Abstract (below) | Full text (most recent) on SSRN

Abstract:

The Supreme Court’s 2010 Term has confirmed, yet again, the legal commentariat’s conviction that the Roberts Court’s conservative majority is recreating an America of Ayn Rand’s imagination. States, the Court has held, may not sue to protect their citizens against out-of-state operators of coal-fired, carbon-spewing power plants. Foreign manufacturers of cutting machines that lop off operators’ limbs may sell the infernal instruments without fear of liability, so long as they do not physically enter or deliberately aim to sell in the plaintiff’s home state. Generic drug makers and vaccine producers may kill and maim their consumers, so long as their labels and products comply with perfunctory federal requirements. All drug makers may overcharge state and local government purchasers, subject only to virtually nonexistent federal administrative oversight. Corporations may force consumers into arbitration agreements; bill them to the tune of a few bucks each but, given the large numbers, for stupendous profits; and then defend against a class action on the grounds that arbitration is not made for that legal device. Also, employers may freely discriminate against millions of employees, so long as they do not inflict an injury that is sufficiently common to warrant a class action. And to protect this order, the plutocracy is constitutionally entitled to buy its own legislators: Public attempts to “level the playing field” violate the First Amendment. Full speed ahead for the Taggart Railroad!

Or maybe not. Upon inspection, the notion that the Roberts Court’s jurisprudence heralds a restoration of unbridled capitalism — or, more modestly, of reliable rules of the road for commercial actors — proves untenable, if not downright absurd. It is true that the Supreme Court often rules for business. And this past Term, unlike in preceding years, those rulings have often been the work of a narrow 5-4 or 5-3 conservative majority. Justice Elena Kagan, though recused from many cases this past Term, has found her reliably liberal voice in no time flat. She does write like a charm, though. However, the pattern is hardly unbroken. Moreover, and far more important, the conservative Justices’ pro-business decisions look like picking weeds in downtown Detroit or for that matter Mrs. Rand’s crumbling New York — well-meant, but unlikely to improve the neighborhood on a lasting basis. The point emerges in contemplation of the charter and instrument that the Supreme Court is supposed to protect: the United States Constitution.