Justice Sotomayor is a Conservative?

Adam Liptak, reviewing the Supreme Court’s recently ended term, attempts to promote his “Roberts Court Is Pro-business” theory by looking back at the term, and pointing to the cases where the conservative justices voted en mass for business interests. Liptak provides no legal analysis that the decisions were only possible by way of extreme partisanship, which would have to be more than mere ideological gloss on facts and law to show that the Court was head over heels for corporate interests. Regardless of my disagreement with the premise, a large section stood out to me near the start of the article, as follows:

“The First Amendment dominated the term, with the court ruling for funeral protesters, the makers of violent video gamesdrug marketers and politicians who decline public financing. The American commitment to free expression, the court said, cuts across politics and commerce, requires tolerance of offensive speech and forbids the government from stepping in when powerful voices threaten to dominate public debate.

In cases involving the nation’s largest private employer,Wal-Mart, and its second-largest cellphone company,AT&T Mobility, the court tightened the rules for class actions and made it easier for companies to do away with class actions entirely by using form contracts.

All of the decisions this term were scrutinized for clues about the arc of the Roberts court as it settles into a period of consolidation and awaits a series of colossal cases, notably the challenges to the health care law championed by President Obama. This term was significant, but the next one may include the most important clash between the Supreme Court and a president since the New Deal.

In the just-completed term, the court’s commitment to free speech and its growing business docket sometimes intersected, as in the cases on drug marketing and video games.

“For the conservatives,” said Lee Epstein, a professor of law and political science at Northwestern, “the First Amendment continues to trump other values, especially if they can help business in the process.””

From the way Liptak phrased it, it seems that the partisan Conservatives of the Court are in the pocket of corporate interests when it comes to the First Amendment. Because of the lack of analysis, the casual reader would not know that Snyder v. Phelps was an 8-1 decision, with a dissent by Alito (one of the conservatives) and involved no corporations. Additionally, Sorrell v. IMS was a 6-3 decision, with Sotomayor joining the conservatives in the majority, while Brown v. EMA was a 7-2 decision with Sotomayor and Kagan joining the majority (Kagan may have joined just to insure availability of Mortal Kombat). The last decision mentioned, Free Enterprise Club v. Bennett, was a 5-4 ideological split which would tentatively support Liptak’s thesis. However, in the direct combination of speech and business, only two of the non 5-4 are mentioned.

So to summarize, Liptak and Epstein think that Sotomayor is a conservative (read the linked post for the best in forgotten arguments) for which “the First Amendment continues to trump other values, especially if they can help business in the process.” OR, we could all just not buy into this pro-business shtick.


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