Tuesday, November 15, 2005

How to determine whether a judge is pro-business

In an interesting article about whether Supreme Court nominee Samuel Alito is pro-business, we have a quote by Donald B. Verilli: "There are series of issues where a principled commitment to a conservative judicial philosophy does not lead to a pro-business outcome."

In a different dimension, I have noted that Justice Scalia's decision in Medtronics, while arguably one of strict construction, was certainly not conservative. Scalia's decision in Merck v. Integra, while falling in line with arguments of the government and of the AARP, was neither one of strict construction nor pro-patentee. And, if Integra wins on remand, the meaning of the decision will not be so clear.

Predicting specific outcomes from perceived general philosophies is not an easy thing to do.

The CNN article also has the text:

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.

Of the issue, one recalls that "income tax" was an issue during the Civil War. When Congress passed a primitive income tax bill in 1862, it was Samuel Chase who ignored the law, preferring to fund the war through more government borrowing . When that source became difficult to tap and Union setbacks continued, Chase talked Lincoln into printing more greenbacks--despite justified fears that doing so would spark inflation.


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