Rosen began noting “Supreme Court, Inc.,” as something of a follow-up to his much discussed article “The Unregulated Offensive,” in which he discussed the alleged “Constitution in Exile” movement (about which we blogged extensively). Both articles were about right-of-center efforts to alter the course of the law. Whereas he once saw these articles as of a piece with each other, he said he now sees that there are larger fissures between the two than he had once appreciated. On the right of the court and in the legal community, Rosen suggested, there is a split between Chamber of Commerce conservatives and libertarian-originalist-states-rights conservatives. The former seek to advance business interests through litigation relying upon statutory arguments, whereas the other has a far more ambitious agenda to limit the size and scope of government on constitutional grounds. Both have market sympathies, but only the former appears to have been at all successful before the Supreme Court.

Rosen took issue with the claim that the lopsided margins in most business cases are evidence of a lack of ideology on the Court. The real lesson of those cases, and the 9-0, 8-1, or 7-2 votes in so many business cases, is that there is a broad ideological consensus on the Court in support of pro-market or pro-business outcomes in most business cases. Yet as Rosen also noted in his talk, insofar as most business-oriented cases involve statutory questions, the focus on statutory text creates the potential for consensus in a given case as justices’ prior ideological or doctrinal commitments. By deferring to Congress and the legislative text, the Court can side step potentially more divisive policy or ideological splits.

Rosen believes the business-oriented conservatives have been largely successful in their legal efforts but there are some notable exceptions. Where the Chamber conservatives have lost – environmental, employment and labor cases – Rosen suggested it is because they have come up against other strong interests and ideological commitments among the justices. So, while most justices may have strong market sympathies, these inclinations may be overridden when they come up against other values (e.g., equality, racial justice, environmental protection) that are more strongly held by at least some of the justices.

Where the Chamber conservatives have been largely successful, the more ideological libertarian-originalist types have seen their efforts bear less fruit on the Supreme Court. While conservative libertarian-oriented public interest legal groups have won some important legal victories, such as on racial preferences, school vouches and interstate wine shipments, the broader project to constrain (if not dismantle) the post-New Deal regulatory state. Their stronger ideological prescriptions got few takers.

Rosen noted the somewhat-famous 1984 debate between then-Professor Antonin Scalia and Professor Richard Epstein on whether courts should aggressively protect economic liberties and constrain federal power. Such efforts would be Lochnerian, Scalia suggested, and he wanted no part of it, whereas Epstein explicitly called fro some measure of “judicial activism” to vindicate a more originalist limited government vision of the Constitution. While Epstein’s libertarian vision was appealing to some – and may have a follower in Justice Thomas – other conservative justices are firmly in Scalia’s camp.

These divisions remain on the right, Rosen noted, but suggested little reason why the libertarian-originalist forces would face more success going forward. Some activists have announced plans to mount constitutional challenges to the federal bailout, but these are unlikely to succeed. So it is likely that, at least until the Court changes dramatically, that the Chamber conservatives will continues to succeed, and the libertarian-originalists to fail. President Obama’s SG, Elena Kagan, may help guide the Court in a less business-friendly direction, though Rosen thought this unlikely. While President Obama could alter the Court's composition, Rosen also thought it unclear whether Obama would nominate a Douglas-style economic populist. Most likely nominees seem to come from the same dominant legal culture that appears in line with the moderately pro-business consensus. Hope for a more populist, less business-friendly justice would have to come from a broader change in the national culture, particularly among legal elites.

Throughout the talk Rosen suggested that the Court has a general market-oriented consensus, which is illustrated by its hostility to "regulation-by-litigation." I would suggest that these are not the same thing. I think Rosen is correct that, as a general matter, the Court has shown a hostility to regulation-by-litigation, and ruled in favor of business in most such cases, but the Court has shown no hostility to regulation, as such, and is not more broadly pro-market. This might explain the Court's deference to the government, and the high rate of business victories in cases in which the SG participates, as well as the failure of plaintiffs who have sought to expand causes of action or use courts as a regulatory tool. So perhaps the Court is not pro-business, as much as it is hostile to regulation-by-litigation.