March 20, 2008
Populism v. Elitism in the Supreme Court
Posted by David Zaring

After the Times's article claiming that the Supreme Court has become more pro-business, Rick Hills gives us a fascinating take on what might be going on:

We are in the midst of a second Gilded Age, in which appointees of either pro-business Democrats (Clinton now, Grover Cleveland then) or pro-business Republicans, dominate the Court. The central thrust of this judicial majority is that judicial creativity in the service of a national market is entirely legitimate. Thus, this Court has crafted a set of doctrines regulating punitive damages and preempting state laws that seem anomalous if one believed that the Court should respect popular democracy. But these doctrines form a principled doctrine entirely consistent with the older Federalist-Whig-Republican tradition of jurocracy. If one sees the courts through Gilded Age lenses, as bulwarks of the national market against parochial and populist local democracy, then we’ve entered a second Gilded Age.

Hills thinks that the elistist, pro-business turn away from populism might be a bad thing, but I'll mildly note that a Court that put the bulk of its work into solving national market problems would be a Court that wouldn't be spending so much time on cases whose consequences are purely symbolic, like flag-burning (though, to be sure, this Court is about to do something about the Second Amendment that won't changes any facts on the ground, but will result in a lot of angsty writing by constitutional law scholars).  The empirical question, I suppose, is whether that is really what this Court is doing.  Amanda Frost thinks the Court spends a lot of time on very technical, all but meaningless circuit splits, and she's got a point.  So I'd say that while it's still unclear that the docket reflects a pro-business turn, Hills has a plausible account of what the justices might be thinking when they do address a case with economic consequences.

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