Posted by Jonathan Adler:
Business and the Sotomayor Pick:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243433224
Many observers (myself included) expected President Obama to nominate
someone to the Court who was not particularly threatening to the
business community. In short, they expected a nominee like Justice
Souter, or perhaps Justice Breyer. As [1]the WSJ reported:
As conservatives gear up to oppose President Barack Obama's
eventual choice for the Supreme Court, the Republican Party's
traditional heart -- the business community -- is laying low.
That is because both business advocates and their counterparts in
the consumer and labor camps say the potential candidates most
frequently mentioned seem likely to share retiring Justice David
Souter's interest in providing what business wants most from
courts: clear, narrow and predictable rules.
While concerned that "empathy" is code for placing a thumb on the
scales to the benefit of favored groups (and against business
interests), many in the business community were hopeful that the
President would select someone who would fit into the Roberts' Court's
overall approach to business cases. That is someone who is [2]not
overtly pro-business, but recognizes the importance of narrow rulings
that reinforce settled expectations. (See also
[3]http://volokh.com/posts/1232838104.shtml";>here).
Does the Sotomayor nomination conform to the business community's
expectations? It's not so clear. As [4]Overlawyered's Walter Olson
notes in [5]the Forbes column to which Eugene linked above, a handful
of her rulings in business cases could be cause for concern.
Two 2006 cases present more problems for Sotomayor advocates, but
they're on subject matter that could come off to the public as dry
and remote: Merrill Lynch v. Dabit, where she held that state
courts could entertain certain securities lawsuits notwithstanding
the preemptive effect of federal law ([6]reversed 8-0 by the high
court), and Knight v. Commissioner, on the deductibility of certain
trust fees, in which the [7]court upheld her result but unanimously
rejected her approach as one that (per Roberts) "flies in the face
of the statutory language."
Issues of business law don't come across as Sotomayor's great
passion one way or the other, so it's hard to know what all this
portends for the high court's direction on business issues should
she be confirmed. . . .
Some of her backers say they expect that Sotomayor will emerge as a
liberal in the less than fiery, relatively "legalistic"
Ginsburg/Breyer mold. Even assuming that happens, some outcomes
will soon change in a direction most businesses will find adverse.
AEI's Michael Greve [8]expresses greater concern on NRO's Bench Memos.
Any Obama nominee was sure to be reliably liberal on high-salience
"social" issues. Judge Sotomayor adds another qualification: She is
among the most aggressively pro-plaintiff, anti-business appellate
judges in the country. Her rulings in class actions, preemption
cases, and other commercial matters are of a piece with her
contempt for property rights (noted by Richard Epstein) and her
anti-employer bias in discrimination cases (a matter of notoriety).
In addition to Knight and Dabit, another case that supports this view,
and in which Sotomayor's approach [9]was rejected by the Supreme
Court, was Malesko v. Correctional Services, in which Judge Sotomayor
adopted an expansive view of Bivens actions to find an implied cause
of action for damages against a private company operating a halfway
house under a contract with the federal Bureau of Prisons. Another
case in which she was reversed for adopting a "anti-business" position
was [10]Entergy Corp. v. Riverkeeper, in which she had held that the
EPA impermissibly considered cost-benefit analysis when setting a
standard under the Clean Water Act.
It is difficult to draw definitive conclusions based upon a handful of
cases. As one would expect, most of Judge Sotomayor's opinions are
unremarkable and involve clear applications of applicable law and
precedent; only a small fraction are even potentially controversial.
Few of her decisions have been reviewed by the Supreme Court. Her
[11]record of reversal in such cases seems high, but is that
significant? The Supreme Court reverses appellate courts more often
than not, so the reversal rate, by itself, may nor mean all that much.
Still, it is interesting that Judge Sotomayor has been reversed more
than once for adopting an excessively permissive standard for suits by
anti-corporate plaintiffs.
Does this mean a Justice Sotomayor would be "anti-business"? Not
necessarily. This handful of cases is not necessarily representative
of her overall approach. On the other hand, as a justice she will be
less constrained by precedent and existing legal interpretations than
as an appellate judge. So if Dabit and Malesko are indicative of her
overall approach, she would be more free to advance this view once
confirmed to the Supreme Court -- and that would be something that
would cause the business community some concern.
References
1. http://online.wsj.com/article/SB124286828827841683.html
2. http://volokh.com/posts/1236539841.shtml
3. http://volokh.com/posts/chain_1232678373.shtml
4. http://overlawyered.com/
5.
http://www.forbes.com/2009/05/26/obama-conservative-supreme-court-nomination-opinions-contributors-sotomayor.html
6. http://www.supremecourtus.gov/opinions/05pdf/04-1371.pdf
7. http://www.supremecourtus.gov/opinions/07pdf/06-1286.pdf
8.
http://bench.nationalreview.com/post/?q=YTBiY2Q0NmNjNmY5ZjE2Zjc3YjdjMjQyM2JlNTg4ZGQ=
9. http://www.law.cornell.edu/supct/html/00-860.ZS.html
10. http://www.law.cornell.edu/supct/html/07-588.ZS.html
11.
http://bench.nationalreview.com/post/?q=MThhNDQ0MTgyYTMxYWUwYzNjMmNmMzE2OGFiMDg5M2M=
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