Tuesday, November 15, 2005

Alito may not be as good for big business as some think.

"Business wins," said Ted Frank, a fellow at the American Enterprise Institute. A magazine headline read, WHY BIG BUSINESS LIKES ALITO. And the New York Times wrote that Alito had "reliably favored big-business litigants." Labels stick -- Sam Alito is "pro-business."

This tells us something about journalism (it's hungry for predigested opinion) and about advocacy groups (they view judicial nominations as fundraising opportunities). It just doesn't tell us much about Alito.

Well, that's a good point.

RE whether a Justice Alito would be good for business:

If Alito's view prevails, laws such as the Endangered Species Act and the Clean Water Act might not hold sway. The Supreme Court agreed last month to hear two Clean Water Act challenges brought by Michigan property owners who say the federal government has no right to regulate local wetlands. Environmentalists say the case is their most important Supreme Court case in years.

You might think that business would cheer when judges support property rights over environmental regs. But big companies, at least, often prefer federal to state regulation. "The last thing manufacturers want is a Balkanized market where you have inconsistent or conflicting regulations," says Hank Cox of the National Association of Manufacturers.


That is not the only place where the business establishment and judicial conservatives part company. On the issue of punitive damages, a top concern of business, there is disagreement as well. Here, Alito's record is skimpy. In 1995 he wrote a majority opinion that struck down a $3 million punitive-damage award to a distributor of Amana refrigerators because the jury had found that no actual damages had occurred. That was, however, a relatively easy call; all three appellate judges agreed.

Since then, the Supreme Court has twice struck down punitive-damage awards made by state courts. But both cases drew strong dissents from odd bedfellows. Two conservative justices, Antonin Scalia and Clarence Thomas, and Justice Ruth Bader Ginsburg, a liberal, argued that the Constitution does not permit federal judges to limit punitive damages.

Corporate lawyers would be dismayed, to say the least, if Roberts and Alito shared their view. "There are series of issues where a principled commitment to a conservative judicial philosophy does not lead to a pro-business outcome," says Donald B. Verilli Jr., a Washington lawyer who frequently argues before the Supreme Court.

Of course, there's a danger in trying to extrapolate any judge's future from his past. When Abraham Lincoln appointed Salmon P. Chase the Chief Justice in 1864, he said that he wanted a judge who would uphold the legality of "greenbacks," money not backed by silver or gold, that had enabled the North to finance the war.

As Lincoln's Treasury Secretary, Chase had written the laws. Three years later Chase wrote an opinion holding that the greenbacks were unconstitutional.
Justice Alito: Business wins. Or not.


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