The Supreme Court is Open for Business
Doug Kendall argues that a lot of recent big Supreme Court cases share only an ideological, and not a legal, consistency:
It is extremely hard to reconcile what the court has done in cause-of-action cases like Stoneridge with its approach to pre-emption cases like Rowe, Riegel, and Preston. In the cause-of-action cases, the court says Congress must unmistakably express its intention to allow people to go to court to enforce federal mandates. If Congress isn’t crystal-clear, potential plaintiffs are out of luck. But in the pre-emption cases, the court seems untroubled by a lack of clarity on Congress’ part, ruling that federal law pushes aside state actions or remedies when it’s not at all certain that’s what Congress so intended. There’s one thing these approaches do have in common: They both favor business interests.
Is the Supreme Court using law as a means to an end? As always, comments are open for a less skeptical interpretation. The politics of Supreme Court nominations over the past few years remind me of David Kuo’s book Tempting Faith, which argued that while cultural issues may be on the surface, the biggest political initiatives in the executive branch have been economic. Perhaps the same could be said of the judicial branch.