Harvard Law Professor Noah Feldman in the June 27th 2010 New York Times Magazine writes that U.S. Supreme Court (“SCOTUS”) decisions cycle between two radically different views of the U.S. Constitution – one that favors individual rights and the other that promotes business. Currently, he writes, the Supreme Court is trending toward favoring business interests.

            Here are some of the actors, concepts and SCOTUS decisions on each side of the divide.

 

Individual Rights

Business Interests, Capital Markets and Market Gains

WV Campaign Contribution case, Caperton v. A. T. Massey Coal Co. – 08-22 (2009).

Mandatory Disclosure of Petition Signatories. Doe v. Reed, 09-559 (2010).

Wage & Hour Regulation

Lochner v. NY, 198 U.S. 45 (1906)

 

Gay Rights. Lawrence et al. v. Texas 539 U.S. 558 (2003).

 

Upholding private contracts.

Eminent domain: Kelo et al. v. City of New London et al., 545 U.S. — – 04-108 (2005)

 

National security

 

Public Policy

 

Tea Party politics

 

Citizens United v. Federal Election Comm’n – 08-205 (2010) and corporate speech.

 

TARP reimbursing A.I.G. insurers 100%, and paying corporate bonuses.

Socialism

Capitalism

Liberal, progressive

Conservative

Democracy

The economy (market actors)

Regulated market capitalism

Unfettered risky investment behavior including sub-prime mortgages, credit default swaps and hedge funds.

Corporate responsibility. Example: The $2B damage fund established by BP.

Environmental damage

Rights not enumerated in the U.S. Constitution are reserved to the states or to the people.

 

Individual autonomy: Rights of privacy and individual liberty. Roe v. Wade, 410 U.S. 113 (1973).

 

Same-sex marriage. (To be determined.)

 

De-regulation

Regulation

 

            I believe that politics reflect a similar cycle of liberal to conservative, and incumbent to outsider. We also see economic psychology in the refusal to continue unemployment benefits after the expensive bailouts to re-start the economy.

            If the impact of a Supreme Court decision is like the size of a paintbrush, then the aggressiveness of the legal theory utilized may be compared to the amount of paint on the brush. Reversals of precedent and unanimous decisions utilize a lot of paint.  Honoring the original intent of the framers of the Constitution unless another theory works better is like a painter switching colors to accomplish a desired effect.