Juridics: Business: US Supreme Court's role in adjudicating major cases involving business

A big hole exists in the expertise of the US Supreme Court Justices in regard to business law. Recently, the Court (often acronymed as SCOTUS = Supreme Court of the Unted States) has demonstarated its shallow understanding of business, not in regard to big business or small, but in regard to the business side of a vital and many-sided relationship of individual and familiy daily life. Indeed, the Court opened the floodgates for two kinds of corporate entities (those of local municipalities in cahoots with a Big Box national retail chain, for instance) to enter into collusion for the purpose of overwhelming and nullifying the domicile-property rights of homeowners. This was the notorious decision of the present demented set of Justices in regard to so-called "Eminent Domain." (Here I must register my dissent from the absolutized principle of "individual right" referenced at the end of the article just linked as it violates the principles of societal sphere-specificity, -sovereignty, and -universality; for the text of the US Supreme Court opinion, concurrence, and dissents see FindLaw.)

According to the provisions of the new business-idiotic law made by the present set of Justices (before the arrival of the the new Chief Justice John Roberts), two varieties of corporate entities could conspire against homeowners (all or any of them - rich and poor and in the middle) to take the homes of the owners (at a mere pittance of their market worth, we may assume, but that isn't my main point point here), so as to maximize the profits of the parachuted-into-town Big Box chain involved - in exchange for whatever tax revenues the chain could pay-out to the town government - which could in turn reduce property taxes for those remaining homeowners who were not dumped-out of their homes like those who had the misfortune to dwell "in the zone" of the Eminent Domain transgression.

Whatever reduction in town property taxes mite result from the displacement of those who had their homes seized for, destroyed by, and property relegated to the new Big Box developer, the benefits would accrue to the other class (again rich and poor alike) of homeowners, citizens, and tax-payers who did not happen to live in the tragically-affected zone and some of whom had had the foresight to run for town office for these most venal purposes in the first place (nb: "venial" means something else).

This is but one sort of tragedy that the business-stupid Supreme Court has already foisted on American private and publice life. With Sandra Day O'Conner on her way out of Supreme Court service, a different kind of Justice is needed to join John Roberts, who has some experience with busienss law, on the SCOTUS bench.

There are other sorts of business issues needing attention as well, business issues other than the example I cited for the wideness of its coverage, other business issues long neglected that have generated in the American business community/ies a hunger for really wise and informed and business-law-experienced Justices.

Not since Justice Lewis F. Powell Jr. retired from the bench in 1987 have executives had even one high court justice with deep experience in the issues that govern American commerce. Antonin Scalia and Stephen G. Breyer built their reputations as law school professors. Sandra Day O'Connor and Clarence Thomas spent much of their careers in government. Ruth Bader Ginsburg was general counsel for the American Civil Liberties Union. William H. Rehnquist, Anthony M. Kennedy and David H. Souter worked for mid-size firms that weren't big players in corporate litigation. John Paul Stevens worked briefly as a corporate antitrust expert, but stopped practicing long before joining the high court.

If Miers is confirmed, she and Roberts could herald a sea change for corporate America. It's not that they'll necessarily be reliable pro-business votes. Their more immediate value to business would be their ability to recognize the significance of commercial questions that come to the court, and the ability to impress upon their fellow justices the need to hear cases critical to corporate America. They could provide two of the four votes needed for the Supremes to hear a case.

The late Chief Justice Rehnquist was happiest immersing himself in cosmic constitutional issues such as free speech and separation of church and state, touchstones for both the far right and far left. Few business conflicts are so high-minded. Most corporate questions that reach the Supreme Court are, to scholars and the public anyway, mundane and byzantine, often delving into mind-numbing federal statutes such as the Private Securities Litigation Reform Act or the Sherman Antitrust Act.

Unable to come to a stable definition of such important questions as "What is 'restraint of trade'"?, the confusing legacy of the present court is simply dumbfounding.

Business finds itself grappling with lingering circuit court splits on issues such as antitrust and pension regulation, a legal patchwork that has executives reaching for the Excedrin. And they continue to be frustrated with the court's chronic reluctance to interpret, once and for all, critical regulations such as the Americans With Disabilities Act.

So we are told by Lorraine Woellert, who gives us the valuable report quoted above (Delaware Online, Oct23,2k5). However, she succumbs to her own brand of idiocy in the final paragraphs of the report (Woellert writes for Business Week too), where she sets offf the Religious Right against the Free-Market Right, as she binomializes her categories. She doesn't recognize that these cats are often enuff identical (all too often I would say, if you take the Libertarian definition of a free-market which is often inflated into an absolute in a most anti-pragmatic fashion).

At the same time, there are Pro-Lifers who are anti-Free-Market all the way to the opposite extreme of bona fide Socialism. In my view neither of these "purist" views is correct, nor politically normative. Likewise, there are Free-Marketeers running businesses that generate the demand for abortions, but who do not support unrestricted abortion, rather wanting it restricted markedly. Instead of relying on a narrowly binomialist logic, Woellert may find that there are many interesting stories to be found in the varieities of mix-and-match on the two issues she reduces to clichés, and then sets in unmitigated opposition to one another. She mite help herself by exploring a matrix logic instead, one that prefers possiblities of contrariety (as against contradictories only), or the even more complex and mentally-rich spectra- or gradient-logics. In most cases, narrow binomialisism is a curse when facing real-life problems.

In the case where non-absolutized support for restrained laws on abortion and where non-absolutized support for free markets are not rigged into polar opposites, we can see more clearly on one side the absolutism of the "Consistent Ethic of Life" (for instance) which would so prioritize its own absolutized issue - that Antitrust Law would pale into juridical insignificance; on the other hand, a Libertarian absolutization of Free Market ideology would have to categorize Planned Parenthood and the abortion industry as a growth industry - the trade of which should not be restrained. Woellert is a victim of her own conflation of categories; thus, her logic suffers from her attempt to solve too many problems of conceptualization and demographic/issue analysis at once, with too few categories and too little heuristic, pragmatic practicality to deal with the real world.

I think Stephen Bainbridge makes a similar mistake in the opposite direction, albeit arguably only a rhetorical one, when he says

The business community clearly believes Miers will be strongly pro-business, which seems highly plausible given her business law background.

I can see Socialists and their kin trying to build an indictment from the one word "pro-business" that Bainbridge uses too glibly given that expertise in cases where the basic issues are between businesses do not tell us what "pro-business" can possibly mean.

Reprising Woellert's most salient paragraph, contra Bainbridge's word, I repeat: "It's not that they'll necessarily be reliable pro-business votes. Their more immediate value to business would be their ability to recognize the significance of commercial questions that come to the court, and the ability to impress upon their fellow justices the need to hear cases critical to corporate America." A strict constructionist of the Miers kind (Hat Tip to Burkean Canuck) must try to give teeth to the AntiTrust Law, without reaching decisions that are themselves in "restraint of trade," interpreted fairly. Otherwise, the Bainbridge article online at TechCentral Station offers much grist for thawtful mulling.

Yet, I would like to mention an even larger point: The value of the two Bush nominees on the Supreme Court is not "Their more immediate value to business," but their longterm value to the entire nation and to all members of society who are served by an economic system of good businesses and good business-law adjudication, whether it reaches all the way to some hi-est level constitutional issues as such, or not. The Supreme Court has several other responsibilities besides those of adjudicating Constitutional issues as such, and it needs other kinds of expertise besides that of Constitutional scholarship. - Owlb

Don't miss Harriet Miers an expert in business law. See also: Marvin Olasky on Theory vs Practical Experience

UPDATES: Hugh Hewitt skewers Anti-Miersian conservative pundit and baseball writer George Will, as does President Aristotle.