Forget abortion: Where does Sotomayor stand on the economy?
The Supreme Court's most famous decisions have usually revolved around sweeping political and social issues like abortion, civil rights and libel. However, it is worth remembering that the New Deal was the primary point of contention between Franklin Delano Roosevelt and the Hughes court. FDR expended a lot of energy attempting to pack the court with justices who were more amenable to his plans, backing down only when the court began to uphold some of his economic moves.
One of the major reasons that pundits tend to focus on the court's political and social decisions is that these positions are generally easier to explain. While confirmation hearings often grill candidates about their beliefs regarding abortion and flag burning, they are not quite so assiduous about questions related to interstate commerce and copyright infringement. Moreover, as recent events have shown, the battle between the pro-business and anti-intervention wings of the Republican party demonstrate that even impeccable conservative credentials aren't an accurate predictor of the economic behavior of a candidate.
In the next few months, the Supreme Court is expected to address several key economic cases. For example, Entergy v. EPA could give the EPA the power to compel power companies to undergo a cost-benefit analysis before selecting technologies to minimize environmental impact. On a broader context, this could open a slew of arguments about the economic impact of environmental protection and, eventually, translate into economic incentives for green technology.
Another case, Reed Elsevier v. Muchnick, could change the face of electronic publishing. The case involves a publisher (Reed Elsevier) who failed to get permission before reproducing the work of freelance writers for electronic distribution. Reed settled a class-action suit with the freelancers, but other interested parties have gotten the settlement overturned on the grounds that most of the work (as is usually the case with freelancers) was unregistered. A finding in favor of Reed could open up all sorts of new rights for freelancers, not to mention royalties.
The court may also address a New Hampshire law that makes it illegal for pharmaceutical companies to data-mine prescription records. This practice, which some companies claim is protected under the first amendment, enables big Pharma to specifically target its marketing at doctors whose prescription history indicates a tendency to buy its wares. If the law is upheld, it would offer protections to consumers who may not want their doctors' choices to be based on advertising blitzes.
In a similar case, the Court may rule on whether sharehoders can sue Merck for providing misleading information about the risks of Vioxx. If Merck is found guilty of withholding information, or providing false information, then it could also be held responsible for the losses of its investors. With a little bit of imagination, it's not hard to see where this could lead, particularly in light of the recent economic meltdown.
Taken as a whole, the next few years could witness some major changes in the economy. With issues as varied as corporate responsibility, the value of intellectual property and the economic impact of environmental protection on the table, it will be very interesting to see if the Sonia Sotomayor's confirmation hearings touch on these issues. Even more, it will be interesting to see if the judge who -- now famously -- grew up in a South Bronx housing project sides with companies or consumers.