What Kind Of Conservative?

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    What Kind Of Conservative?
    Daniel Fisher, 07.19.05, 10:01 PM ET


    Supreme Court nominee John Roberts Jr. has impeccable conservative credentials, but whether he'll be good for business is another matter.

    As corporate lawyers have learned to their chagrin under the generally conservative Rehnquist court, the justices farthest to the right--Antonin Scalia and Clarence Thomas--have refused to come to the aid of business if they can't find explicit authority in the Constitution. Departing Justice Sandra Day O'Connor, whom Roberts would replace, infuriated social conservatives with her pragmatic approach but proved a crucial swing vote on cases such as the 1996 decision limiting $2 million in punitive damages against BMW for selling a car with chipped paint.

    "There are a number of 5-4 precedents could be overruled or changed if somebody took the Scalia-Thomas line" and joined with liberal justices like Ruth Bader Ginsberg and John Paul Stevens, says Victor Schwartz, general counsel of the American Tort Reform Association in Washington.

    Described by fans and foes alike as "the smartest lawyer in America," Roberts, 50, was born in Buffalo, raised in Indiana, and was graduated from Harvard College and Harvard Law School before clerking for current Chief Justice William Rehnquist. As a young lawyer in the Reagan administration, Roberts fought to hem in environmental regulations and the Voting Rights Act, and he later earned as much as $1 million a year as a private attorney practicing before the Supreme Court, where he defended companies including News Corp.'s (nyse: NWS - news - people ) Fox Broadcasting and Toyota Motor (nyse: TM - news - people ).

    President George W. Bush nominated Roberts to the Court of Appeals for the D.C. Circuit in 2001. Since then Roberts has penned a relatively small number of decisions. In a possible clue to his feelings about the ever-increasing scope of Congressional power under the Interstate Commerce Clause of the Constitution, Roberts was one of two judges who dissented from a 2003 decision refusing to rehear the petition of a developer who was barred from building a housing project because of an endangered toad. Congress didn't have the power to regulate activities affecting a toad found in only one state, Roberts wrote.

    If a nominee can be judged by his enemies, Roberts will be a hit with the conservative set. His nomination to the Court of Appeals was opposed by left-wing groups including People for the American Way and the Alliance for Justice, which decried his "commitment to an ultra-conservative, anti-government legal agenda."

    But as Scalia and Thomas have shown, so-called "textualists" can also rule against businesses seeking to establish new rights such as protection from excessive punitive damages. On that score, Roberts is hard to read.
    He once wrote a law review article arguing that property owners should receive compensation for government actions that diminish the value of their land or even make that value "insecure," a standard far exceeding the one established in the Court's recent Kelo decision upholding condemnation of land for a New London, Conn. private development anchored by Pfizer (nyse: PFE - news - people ). As a private lawyer, however, he successfully argued before the Supreme Court that the Tahoe Regional Planning Agency could impose a moratorium on development without compensating landowners.

    Roberts has also written in favor of a more aggressive reading of the Constitution's Contract Clause that would prevent government from imposing new obligations on businesses in their dealings with employees. The last time the Supreme Court took such a stand was in the early 1930s, when it struck down elements of President Franklin Roosevelt's New Deal. That ended when Roosevelt threatened to pack the court with new justices to get his way.

    By nominating a relatively young 50-year-old to the bench, Bush may be supplying at least one thing capitalists want: consistency and predictability. A recent Harris Interactive (nasdaq: HPOL - news - people ) study commissioned by Common Good, a legal reform group, found that 54% of U.S. adults don't trust the legal system to defend them against baseless claims.

    Common Good founder Phillip K. Howard, a lawyer at Covington & Burling and author of the best-selling Death of Common Sense, says the Supreme Court 40 years ago began issuing a series of decisions that "had a destabilizing effect" on society by making it easier for plaintiffs to bring suits and harder for judges to dismiss them. With the emergence of mass torts with huge potential punitive damage awards, Howard says, lawsuits have become a form of extortion.

    With a few exceptions such as O'Connor's 1996 punitive damages decision, Howard says, the justices have been reluctant to rule on basic questions of what kinds of suits should be allowed. That could change with a more pragmatic, pro-business justice deciding which appeals to hear.

    "If the Supreme Court decides it wants to take a hard look at way the American civil justice system works, it will find the cases to do that," Howard says.

    http://www.forbes.com/business/2005/07/19/scotus-roberts-nominee-cz_df_0719court.html?partner=rss
     

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