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Stephen Breyer: “Unabashedly Pro-Business”?

February 20th, 2007 · 1 Comment

In response to today’s Supreme Court ruling in Philip Morris v. Mayola, which threw out a $79 million punitive damage award against the tobacco giant (now going by Altria), both Chris Hayes at The Nation and Scott Lemieux at TAPped note a split between the court’s conservative justices: Alito and Roberts joined the majority, while Thomas and Scalia signed on to Ruth Bader Ginsburg’s dissent.

Scott suggests that this is supposed to provide us with a dark omen that the two newest appointees, because “unprincipled”, can afford to be more “unabashedly pro-business” than even the reviled Scalia, while Chris adds:

While the “hot button” social issues tend to get the most attention, a lot of the Court’s work is in refereeing inevitable disputes between business and the state. This gives a pretty good indication of which side is more likely to get a sympathetic hearing.

Just one problem. The majority opinion was penned by Stephen Breyer, joined by Kennedy and Souter. (A majority, as you may recall, takes five.) You’ll note they are not denounced as “unabashedly pro-business,” probably for the very good reason that it would not be terribly plausible. More to the point, it would entail admitting that there might be grounds for the decision beyond one’s affection or hatred for either widows or big tobacco companies. Grounds like, say, “what you think the law requires.”

This kind of “cui bono” attitude toward judicial rulings, especially by conservative jurists, is one you see with some frequency on the left—I wrote about it when ThinkProgress was circulating some anti-Alito talking points back during that nomination fight—and it seems like the shambling zombie remnant of the old penchant for reducing ideological “superstructure” to economic “base.” I don’t want to say it’s never accurate, or that justices don’t sometimes engage in theoretical contortions to provide a formal rationalization for their substantive policy preferences. But I think it reveals more about the progressive commentators than their targets when they seem to assume that nobody (on the other side? or at all?) decides in accordance with an abstract judicial philosophy, rather than whose bread they want to butter in particular cases.

Tags: Law



1 response so far ↓

  • 1 R.J. Lehmann // Feb 20, 2007 at 6:22 pm

    To anyone who has had to pay attention, this split is exactly the one that should have been predicted, since its more or less the same split that decided the ruling that Phillip Morris upheld — State Farm v. Campbell, in 2003. Roberts and Alito are subbed in for Rehnquist and OConnor, which is generally to be expected. Kennedy wrote the Campbell decision. This time, they gave Breyer a shot. The only real surprise here is that J.P. Stevens flipped from the majority to the dissent. But where Thomas, Scalia and Ginsburg stood was never really in question — Thomas and Scalia don’t believe in substantive due process, and Ginsburg doesn’t believe there ought be any procedural limits to liability.