The headquarters of the US Chamber of Commerce, located across from Lafayette Park in Washington, is a limestone structure that looks almost as majestic as the总部的美国商会，位于对面的拉法叶公园，在华盛顿，是一个石灰岩结构看起来几乎一样雄伟壮观的作为 Supreme Court最高法院 . 。 The similarity is no coincidence: both buildings were designed by the same architect, Cass Gilbert.相似并非巧合：无论建筑设计，由同一建筑师，中国社会科学院吉尔伯特。 Lately, however, the affinities between the court and the chamber, a lavishly financed business-advocacy organization, seem to be more than just architectural.不过最近，亲和力和国际刑事法院间会议厅，一个宽厚融资业务宣传组织，似乎更不仅仅是建筑。 The Supreme Court term that ended last June was, by all measures, exceptionally good for American business.最高法院的任期结束，去年6月，通过各种措施，在特殊情况良好，为美国商界。 The chamber’s litigation center filed briefs in 15 cases and its side won in 13 of them — the highest percentage of victories in the center’s 30-year history.总商会的诉讼中心提交了15例，其副作用韩元13人-占最高比例的胜利，在该中心的3 0年的历史。 The current term, which ends this summer, has also been shaping up nicely for business interests.本届任期内，其中完这个夏天，也已形成了很好的商业利益。

I visited the chamber recently to talk with Robin Conrad, who heads the litigation effort, about her recent triumphs.我参观了议事厅最近跟罗宾康拉德负责人，诉讼的努力，她最近的胜利。 Conrad, an appealing, soft-spoken woman, lives with her family on a horse farm in Maryland, where she rides with a fox-chasing club called the Howard County-Iron Bridge Hounds.康拉德，是一个有吸引力，说话温柔女人，生活，她的家人对马的农场，在马里兰州，在那里她和火球狐狸追逐俱乐部所谓的霍华德县铁桥猎犬。 Her office, playfully adorned by action figures of women like Xena the Warrior Princess and她的办公室， playfully饰以行动人物的妇女一样，这颗勇士与公主 Hillary Rodham Clinton希拉里 , has one of the most impressive views in Washington. ，其中最令人印象深刻的意见，在华盛顿举行。 “You can see the White House through the trees,” she said as we peered through a window overlooking the park. "你可以看到，白宫通过结构树，她说： "正如我们peered透过窗户俯瞰公园。 “In the old days, you could actually see people bathing in the fountain. "在旧时代，你其实可以看到人们沐浴在喷泉。 Homeless people.”无家可归的人" 。

Conrad was in an understandably cheerful mood.康拉德是一个可以理解的愉悦之情。 Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests.虽然目前最高法院有一个良好的声誉，赢得了为分化，但已令人吃惊，在美国的情况下，影响商业利益。 Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes.对30个商业案例上一届，有22人一致决定，或只有一个或两个反对的票数。 Conrad said she was especially pleased that several of the most important decisions were written by liberal justices, speaking for liberal and conservative colleagues alike.康拉德说，她特别高兴的是，一些最重要的决定，书面，由大法官自由，我为自由与保守的同事一样。 In opinions last term,在意见上来说， Ruth Bader Ginsburg在州金斯伯格 , Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like斯蒂芬阵营和David Souter ）每失控，他或她的方式来质疑利用诉讼来挑战公司不法行为-一项战略倡导的渐进式群体像 Public Citizen公共公民 but routinely denounced by conservatives as “regulation by litigation.” Conrad reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ”但照例谴责，也遭到了保守派的"规管的诉讼" 。康拉德一连说出她的一些最喜爱的时刻： "正义金斯伯格谈及如何'私人证券欺诈行动，如果不能充分控制，但可以受聘滥用'正义阵营进行了精彩报价如何国会试图'淘汰理证券官司'正义Souter ）谈到如何诉讼威胁'将推动成本意识的被告，以解决" 。

Examples like these point to an ideological sea change on the Supreme Court.例子一样，这点，以意识形态海面变化对最高法院。 A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice.一个世代以前，进步和消费者团体的请愿，法院可以指望得到良好的多数意见撰写的法官，他们认为，大企业与怀疑论-或什至干脆偏见。 An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was “ready to bend the law in favor of the environment and against the corporations.”经济民粹主义一样，威廉澳道格拉斯，前新政十字军的人送达法院，从1939年至1975年，一旦unapologetically宣布，他"随时准备再度拗折法有利于环境和对公司的" 。

Today, however, there are no economic populists on the court, even on the liberal wing.但是，今天，有没有经济民粹主义对法院，甚至是对自由翼。 And ever since和自 John Roberts约翰罗伯茨 was appointed chief justice in 2005, the court has seemed only more receptive to business concerns.被任命为首席大法官， 2005年，法院似乎只有更容易接受商业焦点。 Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years.百分之四十的情况下，法院听取了上一届涉及商业利益，从30 ％左右，在近几年。 While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.而伦奎斯特法院听取了不到一反托拉斯决定，在一年中，平均在1988和2003年，罗伯茨在法庭听取七名在首两个条件-所有这些就决定了有利于该公司的被告。

Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty.商业案例在最高法院通常获得较少受到关注，只是个案的问题，如扶持行动，流产或死刑。 The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional.纠纷往往很难追踪：法律论点，主要是技术性的，背后的故事，那么情绪化。 But these cases — which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits — are no less important.但这些案件-其中包括股东诉讼，反托拉斯法的挑战，以企业兼并，专利纠纷，并努力减少惩罚性损伤奖项和防止产品责任诉讼-没有那么重要了。 They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people’s daily lives than the often symbolic battles of the culture wars.它们涉及数十亿美元，但有很大的后果，为经济和能有一个更大的影响，对人们的日常生活中较常象征性战役的文化战争。 In the current Supreme Court term, the justices have already blocked a liability suit against Medtronic, the manufacturer of a heart catheter, and rejected a type of shareholder suit that includes a claim against Enron.在目前最高法院而言，大法官会议已封锁了一条法律责任起诉美敦力，制造商的心脏导管，并拒绝了一类股东的诉状中指出，包括声称对安然。 In the coming months, the court will decide whether to reduce the largest punitive-damage award in American history, which resulted from the Exxon Valdez oil spill in 1989.在未来的几个月中，法庭将决定是否减少最大的惩罚性损伤奖，在美国历史上，这是由埃克森瓦尔迪兹石油泄漏，在1989年。

What should we make of the Supreme Court’s transformation?我们应该怎样做出的，最高法院的转型？ Throughout its history, the court has tended to issue opinions, in areas from free speech to gender equality, that reflect or consolidate a social consensus.在其整个历史中，法院已趋于问题的意见，在地区，从言论自由到两性平等，即反映或巩固社会共识。 With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets.与其亲商判例，法官可以捕捉一个新兴的精神一致，自由和保守的精英约的价值的自由市场。 Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business.各专业班，许多民主党人和共和党人，无论其其它分歧，来分享一个比较自由放任的，技术官僚的远见经济和可疑的过分规管和自反努力丑化大生意。 Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception.法官，律师和法学教授（像我这样的）钻井成本效益分析，在过去的30年里，没有任何例外。 It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.它应该并不令人意外约翰罗伯茨和Stephen阵营，他们两人都在研究法律的经济分析，在哈佛大学，有类似的本能，在商业案例。

This elite consensus, however, is not necessarily shared by the country as a whole.这个精英共识，但并不一定是由国家作为一个整体。 If anything, America may be entering something of a populist moment.如果有的话，美国可能会进入某种民粹主义的时刻。 If you combine the groups of Americans in a recent Pew survey who lean toward some strain of economic populism — from disaffected and conservative Democrats to traditional liberals to social and big-government conservatives — at least two-thirds of all voters arguably feel sympathy for government intervention in the economy.如果你把群体的美国人在最近皮尤调查的人，都说他们对一些应变的经济民粹主义-从心怀不满的和保守的民主党人，以传统的自由派人士，以社会和大政府保守派-至少有三分之二的选民都可以说是同情政府对经济的干预。 Could it be, then, that the court is reflecting an elite consensus while contravening the sentiments of most Americans?可它，那么，该法院是反映一个精英共识，而违反的情绪，大多数美国人？ Only history will ultimately make this clear.只有历史最终会做出清楚说明这点。 One thing, however, is certain already: the transformation of the court was no accident.一件事，不过，可以肯定已经：改造法院是没有发生意外。 It represents the culmination of a carefully planned, behind-the-scenes campaign over several decades to change not only the courts but also the country’s political culture.它代表了一个顶峰经过周密策划的，幕后运动几十年的时间才能改变，不只有法庭，而且该国的政治文化。

II. 二。

The origins of the business community’s campaign to transform the Supreme Court can be traced back precisely to Aug. 23, 1971.起源商业界的运动变换最高法院可以追溯到恰恰是1971年8月23日。 That was the day when Lewis F. Powell Jr., a corporate lawyer in Richmond, Va., wrote a memo to his friend Eugene B. Snydor, then the head of the education committee of the US Chamber of Commerce.这是一天的时候，刘易斯，鲍威尔楼小公司的律师在里士满，弗吉尼亚州，写了一份备忘录给他的朋友尤金乙snydor ，那么，主管教育委员会，美国商会。 In the memo, Powell expressed his concern that the American economic system was “under broad attack.” He identified several aggressors: the New Left, the liberal media, rebellious students on college campuses and, most important,在备忘录中，鲍威尔对此表示关切，即美国的经济制度是"根据广泛的攻击" ，他确定了几个侵略者：新左派，自由的媒体，叛逆学生的大学校园里，而最重要的 Ralph Nader纳德 . 。 Earlier that year, Nader founded Public Citizen to advocate for consumer rights, bring antitrust actions when the Justice Department did not and sue federal agencies when they failed to adopt health and safety regulations.今年早些时候，纳德在全国范围内成立公共公民，倡导消费者权益，使反托拉斯行动的时候，美国司法部并没有控告联邦机构的时候，他们没有能够通过健康和安全法规。

Powell claimed that this attack on the economic system was “quite new in the history of America.” Ever since 1937, when President鲍威尔声称，这次袭击事件对经济体制是"很新，在历史上的美国"自从1937年，当总统 Franklin D. Roosevelt罗斯福 threatened to pack a conservative Supreme Court with more progressive justices, the court had largely deferred to federal and state economic regulations.扬言要收拾一个保守的最高法院与更进步的法官，法院已大致推迟到联邦和州的经济法规。 And by the ’60s, the Supreme Court under Chief Justice Earl Warren had embraced a form of economic populism, often favoring the interests of small business over big business, even at the expense of consumers.而在六十年代，最高法院根据终审法院首席法官厄尔华伦曾接受某种形式的经济民粹主义，往往偏袒的利益，小企业比大企业，甚至不惜牺牲消费者的利益。 But what Powell saw in the work of Nader and others was altogether more extreme: a radical campaign that was “broadly based and consistently pursued.”但鲍威尔看到了这项工作的纳德等人，是完全更极端：一种激进运动，那是"有广泛基础的，并一贯奉行" 。

To counter the growing influence of public-interest litigation groups like Public Citizen, Powell urged the Chamber of Commerce to begin a multifront lobbying campaign on behalf of business interests, including hiring top business lawyers to bring cases before the Supreme Court.为了对付越来越大的影响力的公众利益诉讼群体，如公众的公民，鲍威尔敦促商业总会开始multifront游说活动，代表企业的利益，包括雇用顶级商务律师把案件提交最高法院。 “The judiciary,” Powell predicted, “may be the most important instrument for social, economic and political change.” Two months after he wrote the memo, Powell was appointed by "司法机构" ，鲍威尔预测说： "可能是最重要的工具，为社会，经济和政治变革" 。两个月后，他写出了备忘录中，鲍威尔被任命为所 Richard Nixon尼克松 to the Supreme Court.向最高法院上诉。 And six years later, in 1977, after steadily expanding its lobbying efforts, the chamber established the National Chamber Litigation Center to file cases and briefs on behalf of business interests in federal and state courts.和36年后，在1977年后，稳步拓展其游说的努力，该庭建立了全国商会诉讼中心，以档案案件和内裤代表企业的利益，在联邦和州法院。

Today, the Chamber of Commerce is an imposing lobbying force.今天，该商会是一个强加的游说力量。 To fulfill its mission of serving “the unified interests of American business,” it collects membership dues from more than three million businesses and related organizations; last year, according to the Center for Responsive Politics, the chamber spent more than $21 million lobbying the White House, Congress and regulatory agencies on legal matters.为了履行自己的使命，服务"的统一利益的美国商界" ，它收集会员费从300多万企业和相关组织的合作;去年，根据该中心为顺应政治，会议厅用了超过2100万美元的游说白皮书府，国会和监管机构的法律事务。 But its battle against the forces of Naderism got off to a slow start.但其对抗的力量naderism下车，一开始进展较慢。 In 1983, when Robin Conrad arrived at the chamber, the Supreme Court was handing Nader and his allies significant victories.在1983年，当时罗宾康拉德来到会议厅，最高法院是交出纳德和他的盟友的重大胜利。 That year, for example, the court held that这一年，举例来说，法院认为， President Reagan里根总统 ’s secretary of transportation, Andrew L. Lewis Jr., acted capriciously when he repealed a regulation, inspired by Nader’s advocacy, that required automakers to install passive restraints like air bags.奇摩运输部长安德鲁刘易斯的影响小，任意行事的时候，他已废除的规例，灵感纳德的宣传工作，这需要汽车制造商安装的被动约束，像安全气囊。 In 1986, the chamber supported a challenge to the在1986年，商会支持的一个挑战了 Environmental Protection Agency环境保护局 ’s aerial surveillance of a Dow Chemical plant.奇摩空中监视一个陶氏化学厂。 The chamber’s side lost, 5-4.总商会的一方败诉， 5-4 。

But eventually, things began to change.但最终，事情开始发生变化。 The chamber started winning cases in part by refining its strategy.香港总商会就开始拿冠军案件部分由精炼自己的战略。 With Conrad’s help, the chamber’s Supreme Court litigation program began to offer practice moot-court arguments for lawyers scheduled to argue important cases.与康拉德的帮助下，总商会的最高法院的诉讼程序开始提供实践的模拟法庭的论点为律师定辩称要案。 The chamber also began hiring the most-respected Democratic and Republican Supreme Court advocates to persuade the court to hear more business cases.该商会也开始雇用最敬重的民主党和共和党，最高法院主张，以说服法庭听取更多的商业案件。 Although many of the businesses that belong to the Chamber of Commerce have their own in-house lawyers, they would have the chamber file “friend of the court” briefs on their behalf.虽然有很多的企业，属于该商会已各自在公司内部律师，他们将有商会档案"的朋友，法院"内裤就代表他们。 The chamber would decide which of the many cases brought to its attention were in the long-term strategic interest of American business and then hire the leading business lawyers to write supporting briefs or argue the case.香港总商会将决定其中的许多情况下，提请其注意的是在长远的战略利益的美国商界，然后聘请了领先的商业律师写支持内裤或争论的情况。

Until the mid-’80s, there wasn’t an organized group of law firms that specialized in arguing business cases before the Supreme Court.中期之前，八十年代，现在还没有一个有组织集团的律师事务所专门业务争论的案件提交最高法院。 But in 1985, Rex Lee, the solicitor general under Reagan, left the government to start a Supreme Court appellate practice at the firm Sidley Austin.但在1985年，獭议员，律师一般里根下，离开了政府，开始对最高法院上诉的做法，在企业sidley奥斯汀。 Lee’s goal was to offer business clients the same level of expert representation before the Supreme Court that the solicitor general’s office provides to federal agencies.李的目标是提供企业客户同样水平的专家代表权之前，最高法院认为，律师的办公室提供给联邦机构。 Lee’s success prompted other law firms to hire former Supreme Court clerks and former members of the solicitor general’s office to start business practices.李的成功促使其他律师事务所聘请前最高法院书记员和前任议员的律师一般的办公室展开商业行为。 The Chamber of Commerce, for its part, began to coordinate the strategy of these lawyers in the most important business cases.该商会青年委员会，就其本身而言，就开始以协调战略的这些律师，在最重要的商业案件。

At times, the strategic calculations can be quite personal.有些时候，战略计算，可以很个人的。 Because Supreme Court clerks have tremendous influence in making recommendations about what cases the court should hear, Conrad told me, having well-known former clerks involved in submitting a brief can be especially important.因为最高法院书记员有很大的影响，在提出建议什么情况下，法院应听听，康拉德告诉我，有著名的前书记员参与提交了一份简短的，可以特别重要的意义。 “When Justice O’Connor was on the bench and we knew her vote was very important, we had a case where the opposition had her favorite clerk on the brief, so we retained her next-favorite clerk,” she said with a laugh. "当大法官奥康纳被放在替补席上，我们知道她的票是很重要的，我们有一个的情况下，反对派她最喜爱的秘书就简短的，所以我们保留了她的下一代最喜爱的秘书， "她笑着说。 “We won.” "我们赢了" 。

In our conversation, Conrad was especially enthusiastic about Maureen Mahoney, a former clerk for Chief在我们的谈话中，康拉德是特别热衷于陈梁梦莲mahoney ，一名前秘书行政 Justice Rehnquist大法官伦奎斯特 and one of the top Supreme Court litigators who coordinate strategy with the chamber.及一个顶尖的最高法院诉讼人负责协调战略与会议厅。 When Mahoney agreed in 2005 to represent an appeal by the disgraced accounting firm Arthur Andersen, which was convicted in 2002 of obstructing justice by shredding documents related to the audit of Enron, few people thought the Supreme Court would take the case.当mahoney同意，在2005年代表呼吁，由蒙羞会计师事务所安达信公司，其中被裁定罪名成立，在2002年的妨碍司法切碎文件涉及到审计安然，很少人想到，最高法院将采取如此。 “The climate was very anti-Enron,” Mahoney told me, “and it was viewed as a doomed petition.” "气氛是非常反安然， " mahoney告诉我， "它被认为是一个注定请愿书" 。

Mahoney rehearsed her Supreme Court argument in a moot court sponsored by the chamber. mahoney排练，她最高法院的说法，在模拟法庭主办的会议厅。 (“She was absolutely dazzling,” Conrad recalls.) On April 27, 2005, Mahoney stood calmly before the justices and delivered one of the best oral arguments I’ve ever seen at the Supreme Court. （ "她是绝对令人眼花缭乱的" ，林钜成回忆说。 ）就2005年4月27日， mahoney站在从容前大法官会议，并作了最好的时期之一口头辩论，我已经见过，在最高法院审理。 She argued that because Arthur Andersen’s accountants had followed a standard document-destruction procedure before receiving the government’s subpoena, they couldn’t be guilty of a crime; they weren’t aware what they were doing was criminal.她说，正因为安达信会计师遵循了一个标准的文件销毁程序，在未接获政府的传票，但他们不能被裁定犯罪的，他们并不知道他们做些什么，是犯罪行为。 The Supreme Court unanimously agreed and reversed the conviction, 9-0.最高法院一致同意，并一举扭转了信念， 9-0 。

The Arthur Andersen case is a good example of how significantly the Supreme Court has changed its attitude about cases involving securities fraud — and business cases more generally — from the Warren to the Roberts era.在安达信事件就是一个很好的例子，如何显着，最高法院已改变态度，对案件涉及的证券欺诈行为-和业务的情况更加普遍-从沃伦，以罗伯茨时代。 In a case in 1964, the court ruled that aggrieved investors and consumers could file private lawsuits to enforce the securities laws, even in cases in which Congress hadn’t explicitly created a right to sue.在一个案件中， 1964年，法院裁决感到不满，投资者和消费者可以提出私人诉讼，以执行证券法律，甚至在这些案件中，国会没有明确创造了一个有提出控告的权利。 In the mid-1990s, however, Congress substantially cut back on these citizen suits, and the court today has shown little patience for them.在20世纪90年代中期，但是，国会大幅削减对这些公民诉讼，法院今天已表现出缺乏耐心给他们。 Mahoney says she sees her victory in the Arthur Andersen case as significant because it applied the same principle in criminal cases involving corporate wrongdoing that the court had already been recognizing in civil cases: namely, “refusing to create greater damage remedies or criminal penalties than Congress has explicitly specified.” She describes the case as “a very important win for business.” mahoney说，她认为她的胜利，在安达信案件为重要，因为它适用同样的原则，在刑事案件中，涉及公司的不法行为，该法院已经承认在民事案件中，即： "拒绝创造更大的损害补救办法或刑事处罚比国会已明确规定" ，她描述的情况，因为"一个非常重要的胜利生意" 。

This term, the Supreme Court has continued to cut back on consumer suits.这个名词，最高法院继续削减对消费者的西装。 In a ruling in January, the court refused to allow a shareholder suit against the suppliers to Charter Communications, one of the country’s largest cable companies.在执政党在今年1月份，法庭拒绝让一名股东起诉该供应商Charter通信，其中一个是全国最大的有线电视公司展开竞争。 The suppliers were alleged to have “aided and abetted” Charter’s efforts to inflate its earnings, but the court held that Charter’s investors had to show that they had relied on the deceptive acts committed by the suppliers before the suit could proceed.该供应商被指控有"教唆及协助"宪章的努力，以夸大其收益，但法院认为，宪章的投资者已经表明他们是靠这种欺骗行为，由供应商之前，西装，可以继续进行。 A week later, the court invoked the same principle when it refused to hear an appeal in a case related to Enron, in which investors are trying to recover $40 billion from Wall Street banks that they claim aided and abetted Enron’s fraud.一个星期后，法院援用同一原则的时候，它拒绝审理上诉案件有关安然公司，其中投资者正设法收回40000000000美元来自华尔街的银行表示，他们声称教唆及协助安然公司的欺诈行为。 As a result, the shareholder suit against the banks may be dead.因此，股东起诉该银行可能已经死亡。

III. 三。

In addition to litigating cases before the court, the Chamber of Commerce also lobbies Congress and the White House in an effort to change the composition of the court itself.除了诉讼，法院受理的案件，商会的代表也游说国会和白宫在努力改变法院的组成本身。 (Unlike many other government officials, the justices themselves are not, of course, subject to direct corporate lobbying.) The chamber’s efforts in this area were inspired by （不像许多其他政府官员，法官们自己的，当然不会，但须直接游说公司） ，总商会在这方面的努力受到启发 Robert Bork罗伯特伯克 ’s thwarted nomination to the court in 1987.奇摩挫败提名，以法院在1987年。 Business groups were enthusiastic about Bork — not because of his conservative social views but because of his skepticism of vigorous antitrust enforcement.商业团体均热烈约伯克-不是因为他的保守社会意见，但因为他是持怀疑态度，在严厉的反垄断执法工作。 “In reaction to the Bork nomination, it struck us that we didn’t even have a process in place to be a player,” Conrad said. "的反应，向伯克的提名，它击中了我们，我们甚至没有一个过程，在地方为一名球员， "康拉德说。

So the chamber set up a formal process for endorsing candidates after their nominations.因此商会成立一个正式的过程中，为确认候选人后，他们的提名。 The process was designed to be bipartisan; and the chamber has encouraged Democratic as well as Republican presidents to appoint justices.该进程的目的是为了得到两党和商会一直鼓励民主党以及共和党总统任命的大法官。 Nominees are evaluated solely through the prism of their views about business.参选人是评价仅仅通过棱镜他们的意见，对业务。 “We’re very surgical in our analysis,” Conrad said. "我们很手术，在我们的分析， "康拉德说。

After the election of选后的 Bill Clinton比尔克林顿 , for example, the chamber endorsed Ruth Bader Ginsburg, who in addition to her pioneering achievements as the head of the women’s rights project at the ACLU had specialized, as a law professor, in the procedural rules in complex civil cases and was comfortable with the finer points of business litigation. ，举例来说，该庭通过在州金斯伯格，他们除了她的开创性成就，为团长的妇女权益的项目在美国民权联盟有专门的，作为一个法学教授，在程序规则，在复杂的民事案件，并于舒适与细密点营业诉讼。 The chamber was especially enthusiastic about Clinton’s second nominee, Stephen Breyer, who made his name building a bipartisan consensus for airline deregulation as a special counsel on the judiciary committee; and who, as a Harvard Law professor, advocated an influential and moderate view on antitrust enforcement.香港总商会是特别热衷于克林顿的第二代名人，斯蒂芬阵营，他们作出了自己的名字建立一个跨党派的共识，为航空公司违规作为一个特殊的律师对司法委员会主席，以及谁，作为一个哈佛大学法学教授，主张一个有影响力和温和的看法对反垄断执法工作。

During Breyer’s confirmation hearings his sharpest critic was Ralph Nader, who testified that his pro-business rulings were “extraordinarily one-sided.” Another critic, Senator Howard Metzenbaum of Ohio, said that the fact that the chamber was the first organization to endorse Breyer indicated that “large corporations are very pleased with this nomination” and “the fact that Ralph Nader is opposed to it indicated that the average American has a reason to have some concern.” The chamber’s imprimatur helped reassure Republicans about Breyer, and he was confirmed with a vote of 87 to 9.在阵营的确认听证会，他尖锐的批评者是纳德的人作证说，他的亲商界的裁决"非常是片面的" 。另一个影评人，参议员霍华德metzenbaum俄亥俄州立说，事实上，香港总商会是第一个组织赞成阵营表示， "大公司很高兴看到这一提名" ， "事实，即纳德是反对它表示，美国人的平均年龄有一个理由，有一些关切。 "分庭的imprimatur有助于安抚共和党人约阵营，他被证实的一票， 87日至9 。 “Frankly, we didn’t feel like we had anyone on the court since Justice Powell who truly understood business issues,” Conrad told me. "坦率地说，我们并不觉得像我们任何人对法院，因为司法鲍威尔谁真正理解业务问题， "康拉德告诉我。 “Justice Breyer came close to that.” "正义阵营来到接近这一界限。 "

The Breyer and Ginsburg nominations also came at a time when liberal as well as conservative judges and academics were gravitating in increasing numbers to an economic approach to the law, originally developed at the该阵营和金斯伯格提名还来到在这个时候，自由以及保守的法官和学者分别受引力越来越多地向经济的办法，以法律的，本来发达，在 University of Chicago芝加哥大学 . 。 The law-and-economics movement sought to evaluate the efficiency of legal rules based on their costs and benefits for society as a whole.该法律和经济学运动旨在评估效率的法律规则，根据自己的成本和效益，为社会的整体利益。 Although originally conservative in its orientation, the movement also attracted prominent moderate and liberal scholars and judges like Breyer, who before his nomination wrote two books on regulation, arguing that government health-and-safety spending is distorted by sensational media reports of disasters that affect relatively few citizens.虽然原本保守的方向，以不结盟运动还吸引了突出温和自由派学者和法官一样阵营，他们以前对自己的提名写了两本书，对调控，认为政府的健康和安全开支是扭曲轰动媒体报道灾难的影响相对较少的市民。

Since joining the Supreme Court, Breyer has also been an intellectual leader in antitrust and patent disputes, which often pit business against business, rather than business against consumers.自加入最高法院，阵营也一直是一个智力领导人在反垄断和专利纠纷，往往窖商业对商业，而不是商业对消费者。 In those cases, many liberal scholars sympathetic to economic analysis have applauded the court for favoring competition rather than existing competitors, innovation rather than particular innovators.在这种情况下，许多自由派学者同情经济分析都热烈鼓掌，法院偏袒竞争，而不是现有的竞争对手，创新，而不是特别革新者。 “The court deserves credit for trying to rationalize a totally irrational patent system, benefiting smaller new competitors rather than existing big ones,” says "法院的功劳要理顺一个完全不合理的专利制度，受益较小的新的竞争者，而不是现有大的，放活" Lawrence Lessig的Lawrence Lessig , an intellectual-property scholar at Stanford. ，智慧财产权学者在斯坦福大学。

Clinton’s nominations of Ginsburg and Breyer may have been welcomed by the chamber, but with the election of克林顿的提名金斯伯格，并阵营可能会受到普遍欢迎会议厅，但随着选举 George W. Bush布什 , the chamber faced a dilemma.时，分庭面临的困境之一。 Ever since the Reagan administration, there had been a divide on the right wing of the court between pragmatic free-market conservatives, who tended to favor business interests, and ideological states-rights conservatives.自从里根政府已经有了隔膜对右翼的法院之间务实的自由市场保守派，他们通常有利于商业利益，意识形态的国家人权保守派。 In some business cases, these two strands of conservatism diverged, leading the most staunch states-rights conservatives on the court,在一些商业案例，这两个方向的保守主义分道扬镳，领导最坚强的国家人权保守派对法院， Antonin Scalia伦奎斯特 and及 Clarence Thomas克拉伦斯托马斯 , to rule against business interests. ，以避免商业利益。 Scalia and Thomas were reluctant to second-guess large punitive-damage verdicts by state juries, for example, or to hold that federally regulated cigarette manufacturers could not be sued in state court.大法官和托马斯不愿意第二大猜想惩罚性损伤一审宣判后，由国务院陪审团，例如，或认为联邦调节的香烟制造商，可以不被起诉的国家法院。 As a result, under Conrad’s leadership, the chamber began a vigorous campaign to urge the Bush administration to appoint pro-business conservatives.因此，根据康拉德的领导下，商会就开始积极活动，敦促布什政府任命亲商界的保守派。

When it came time to replace Chief Justice William Rehnquist and Justice当它来到的时候，以取代首席大法官伦奎斯特和大法官 Sandra Day O’Connor桑德拉戴奥康纳 , the candidate most enthusiastically supported by states-rights conservatives, Judge Michael Luttig, had a record on the Court of Appeals for the Fourth Circuit that some corporate interests feared might make him unpredictable in business cases. ，候选最热情支持，由国家版权保守派法官迈克尔luttig ，有破纪录就上诉法院第四巡回一些企业的利益，恐怕会令他难以预料的，在商业案例。 (“One of my constant refrains is that being conservative doesn’t necessarily mean being pro-business,” Conrad told me.) The chamber and other business groups enthusiastically supported John Roberts, who had been hired by the chamber to write briefs in two Supreme Court cases in 2001 and 2002. （ "我的一个常数不再是守旧，并不一定意味着被亲商" ，康拉德告诉我的）商会及其他商业团体的热情支持约翰罗伯茨，他们已聘请了由商会写内裤在两最高法庭案件中， 2001年和2002年。 At the time of Roberts’s nomination, Thomas Goldstein, a prominent Supreme Court litigator, described him as “the go-to lawyer for the business community,” adding “of all the candidates, he is the one they knew best.” When Roberts was nominated, business groups lobbied senators as part of the campaign for his confirmation.在时间的罗伯茨的提名，托马斯Goldstein表示，一个突出的最高法院诉讼律师，形容他为"牵线，以律师为企业共同体" ，加入"的所有候选人，他就是一个，他们知道最好的" 。当罗伯茨被提名，商业团体游说参议员作为营销活动的一部分，他的确认。

The business community was also enthusiastic about商业界也热衷 Samuel Alito塞缪尔阿利托 , whose 15-year record as an appellate judge showed a consistent skepticism of claims against large corporations. ，其15年的纪录，作为一个上诉法官表明一贯持怀疑态度的索赔针对大公司。 Ted Frank of the American Enterprise Institute predicted at the time of the nomination that if Alito replaced O’Connor, he and Roberts would bring about a rise in business cases before the Supreme Court.特德坦率的美国企业研究所预测，在时间的提名，如果阿利托代替奥康纳，他和罗伯茨会带来业务量上升，案件提交最高法院。 Frank’s prediction was soon vindicated.坦率的预言很快就被平反。

“There wasn’ta great deal of interest in classic business cases in the last few years of the Rehnquist Court,” Carter Phillips, a partner at Sidley Austin and a leading Supreme Court business advocate, told me. "不是很大的兴趣，经典商业案例，在过去数年的伦奎斯特法院， "卡特菲利普斯另一位合伙人sidley奥斯汀和领导最高法院商务主张，告诉我。 In 2004, Judge Richard Posner, a founder of the law-and-economics movement, argued that the Rehnquist Court’s emphasis on headline-grabbing constitutional cases had politicized it, and called on the court to hear more business cases. 2004年，法官理查德波斯纳，创始人之一，法律和经济学运动，争辩说，伦奎斯特法院的重点放在大标题触目宪政案件政治化，并呼吁有关法院审理更多的商业案件。 The Roberts court has unambiguously answered the call.罗伯茨法院已毫不含糊地回答了电话。 As Phillips told me, Roberts “is more interested in those issues and understands them better than his predecessor did.”由于菲利普斯告诉我，罗伯茨" ，是比较有兴趣在这些问题，并了解他们胜过他的前任" 。

IV. 四。

Exactly how successful has the Chamber of Commerce been at the Supreme Court?究竟取得了多大成功商业总会一直在最高法院？ Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog.虽然法院目前正在接受低于2 ％的10000请愿活动，它得到每一年中，商会青年委员会的请愿活动之间， 2004年和2007年分别授予一率为26 ％ ，据scotusblog 。 And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent.并说服最高法院审理一宗案件一半以上的战斗：理查德拉撒路，一名国际法教授乔治城人，也代表了对环境的客户在法庭上，最近冉人数，并发现该法院推翻了下级法院在65 ％左右该情况下，同意听取和当信访人的代表是精英最高法院主张经常聘请的会议厅，成功率上升到75 ％ 。

Faced with these daunting numbers, the progressive antagonists of big business are understandably feeling beleaguered and outgunned.面对这些严峻的人口数量，渐进拮抗剂的大生意，是可以理解的情绪困扰及所获。 “The fight before the court is generally not an even one,” said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. "打前，法院一般是不会被一个连一个，说： "大卫vladeck ，曾经工作，为市民的公民诉讼，集团目前任教于法乔治敦。 “There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” He added, ruefully, “You admire their handiwork, but it’s frustrating as hell to deal with.” "目前我们一方，以简短的两年内，与工业界在另一边，一个协调良好的运动， 10个或12个内裤，每一个写的一员精英最高法院律师说，处理一个问题，在巨大的深度" ，他补充说， ruefully ， "你佩服他们的手工，但太令人沮丧了，因为地狱来处理" 。

To gauge the degree of the frustration, I recently paid a visit to Ralph Nader, a few weeks before he announced his most recent campaign for president of the United States.以了解程度的挫折，我最近拜访了纳德的，几个星期前，他宣布，他最近竞选美国总统。 It was a surprise to find that his office, the Center for Study of Responsive Law, shares an address in a grand building with the Carnegie Institution for Science.这是一个惊喜地发现，他的办公室外，该中心为研究反应法，股份地址在隆重的自身建设，同卡内基研究所的科学。 But the office itself, reassuringly, is buried on the ground floor, where Nader received me at a conference table surrounded by file cabinets stuffed with faded back issues of Mother Jones and The Nation.但是办事处本身放心的，是埋藏于地下，而纳德收到我在一个会议桌四周档案柜塞着褪了色的旧的母亲琼斯和民族。

Nader was uncontrite about his 2000 run against纳德是uncontrite对他来说， 2000年对 Al Gore戈尔 — which is often credited with helping George W. Bush win the presidency — and he insisted that because Clinton appointed justices like Breyer, Gore would have done the same. -这是常记与帮助布希总统宝座-以及他坚持认为，因为克林顿任命的大法官一样阵营后，戈尔会也做了相同的。 “Breyer hasn’t been worse than I feared, because I had real concern when he was nominated,” Nader told me. "阵营并没有坏，比我担心的，因为我真正担心的时候，他获得提名， "纳德告诉我。 He conceded that, like Breyer, Democratic justices appointed by President他承认，像阵营，民主大法官任命总统 John Kerry克里 would presumably have been better on civil rights and liberties than John Roberts and Samuel Alito.大概会得到更好的对公民权利和自由，比约翰罗伯茨和塞缪尔阿利托。 Nevertheless, he disparaged Breyer as a “deregulation quasi-ideologue” who was able to weave a “tapestry of illusion” in his arguments by dealing in abstractions.不过，他还是贬阵营视为"撤销准ideologue " ，他们能织"的挂毯幻觉" ，在他的论点正确处理在抽象的。

The main casualty of the 2000 run, Nader said, is that he is no longer collaborating with America’s trial lawyers.主要伤亡的2000年来说，纳德说，是因为他已不再是与美国的审判律师。 They would ordinarily be his natural allies in representing consumer interests, but they donated heavily to Gore’s campaign.他们一般都将其天然的盟友在代表消费者利益，但他们捐赠了大量的戈尔的竞选。 After 2000, the trial lawyers “have been vitriolic,” Nader explained. 2000年后，审判律师" ，已成为硫酸， "纳德解释。 He blames them for not using their money to help counteract the influence of the Chamber of Commerce and other business groups before the federal courts.他指责他们不使用他们的钱，以帮助抵消的影响，总商会及其他商业团体在联邦法院审理。 In part as a result of their stinginess, he said, his colleagues at Public Citizen are underfinanced and worn down.部分原因是由于他们的吝啬，他说，他的同事们在公众公民是资金不足和拖垮。 “There were some lawyers who left Public Citizen because they got tired of losing,” he said. "也有一些律师，他们离开公共公民，因为他们厌倦了亏损， "他说。 “Everyone is desperately trying to hold on to whatever issues are left, and then they become demoralized and discouraged.” "每个人都拼命要坚持对什么问题都离开，然后他们变得意志消沉和气馁" 。

Thirty years after the Chamber of Commerce founded its litigation center to counteract his influence, Nader all but conceded defeat in the battle for the Supreme Court.三十年后，该商会的成立，其诉讼中心，以抗衡他的影响力，纳德所有，但不能让步的失败，在争夺最高法院。 With the decline of economic populism in Congress, the weakening of trade unions and the rise of globalization, the political climate, he lamented, was passing him by.与衰落的经济民粹主义在国会中，削弱工会和全球化的崛起，政治气候下，他哀叹道，是通过他的。 “I recall a comment by Eugene Debs,” Nader said, looking at me intensely. "我记得一位评论尤金debs ， "纳德说，看我紧张地。 “He said: The American people live in a country where they can have almost anything they want. "他说：美国人民生活在一个国家，他们可以有几乎任何他们所想的。 And my regret is that it seems that they don’t want much of anything at all.”我的遗憾是，他们似乎并不想得多，什么都没有。 "

Nader chuckled quietly and shook his head.纳德悄悄地如数家珍，并摇摇头。 “I say ditto.” "我说，同上" 。

V. 五。

If there is an anti-Nader — a crusading lawyer passionately devoted to the pro-business cause — it is Theodore Olson.如果有一个反纳德-c rusading律师慷慨激昂地投入到亲商的原因-那是西奥多奥尔森。 One of the most influential Supreme Court advocates and a former solicitor general under President George W. Bush, Olson is best known for his winning argument before the Supreme Court in Bush v. Gore in 2000.其中最有影响力的最高法院倡导者和一名前律师一般根据美国总统布什，奥尔森的是，他还赢得论点之前，最高法院在布什诉戈尔在2000年。 But Olson has devoted most of his energies in private practice to changing the legal and political climate for American business.但奥尔森花了他的大部分精力从事私人执业，以改变法律和政治气候，为美国商界。 According to his peers in the elite Supreme Court bar, he more than anyone else is responsible for transforming the approach to one of the most important legal concerns of the American business community: punitive damages awarded to the victims of corporate negligence.据他的同辈中的精英最高法院律师，他比任何人更是负责改造的方法之一，最重要的法律问题，美国商界：惩罚性损害赔偿，向受害者公司疏忽。

Punitive damages — money awarded by civil juries on top of any awarded for actual harm that victims have suffered — are designed to penalize especially egregious acts of corporate misconduct resulting from malice or greed, and to deter similar wrongdoing in the future.惩罚性损害赔偿金-货币授予民间陪审团除了颁发任何实际损害的，受害人遭受了-旨在惩罚特别恶劣的行为，企业的不当行为所造成的恶意或贪欲，以防止类似违法行为的未来。 In the 19th century, courts generally demanded a clear assignment of fault in cases where victims sued for injuries caused by malfunctioning products.在19世纪，法院一般要求明确指定故障的情况下，受害者的控诉为受伤所造成的失灵的产品。 It was hard for plaintiffs to recover in personal-injury cases unless the corporation was obviously at fault.令人难以理解原告，以收回在个人伤害案件，除非该公司有明显过错。 But in the 20th century, in liability cases involving a rapidly expanding class of potentially dangerous products like cars, drugs and medical devices, courts increasingly applied a standard of “strict liability,” which held that manufacturers should pay whether or not they were directly at fault.但是，在20世纪，在法律责任的案件涉及一个迅速扩大的阶层有潜在危险的产品，如汽车，药品和医疗器械的，法院越来越适用标准"严格法律责任" ，其中认为，制造商应支付他们是否直接在故障。

The animating idea was that manufacturers were in the best position to prevent accidents by improving their products with better design and testing.该生动活泼的想法是，厂家在最好的位置，以防止意外的发生，改善他们的产品与更好的设计和测试。 They and their insurance companies (rather than society as a whole) would shoulder the costs of accidents, thus giving them an incentive to make their products safer.他们和他们的保险公司（而不是整个社会） ，将该项费用的事故，所以给他们一个激励，以使他们的产品更加安全。 Encouraged by Ralph Nader’s book, “Unsafe at Any Speed,” published in 1965, courts began to see car accidents as predictable events that better car design could have prevented.鼓舞纳德的书， "不安全的，在任何速度" ，发表在1965年，全国法院开始见到车祸，因为可预见的事件，更有效地汽车设计本来可以预防的。 In 1968, for example, a federal court held that car manufacturers could be sued for failing to make cars safe enough for drivers to survive crashes, even if the driver was at fault for the crash.

A series of well-publicized awards in the 1980s and ’90s culminated in the largest punitive damage award in American history the $5 billion levied against Exxon after the Exxon Valdez oil spill in 1989. This was hardly typical: the median punitive award actually fell to $50,000 in 2001 from $63,000 in 1992. This was hardly typical: the median punitive award actually fell to $50000 in 2001 from $63000 in 1992. Nevertheless, critics like Olson claimed that multimillion-dollar punitive-damage verdicts were threatening the health of the economy. They resolved to fight back on several fronts. In his first Supreme Court argument, in 1986, Olson set out the broad contours of his argument: for most of English and American history, private litigants were entitled to be compensated for whatever damages they suffered, including pain and suffering, but any public wrongs like the failure of American business to make cars safer by adopting air bags should be addressed by legislation or regulation, not by the courts. In his first Supreme Court argument, in 1986, Olson set out the broad contours of his argument: for most of English and American history, private litigants were entitled to be compensated for whatever damages they suffered, including pain and suffering, but any public wrongs like the failure of American business to make cars safer by adopting air bags should be addressed by legislation or regulation, not by the courts.

Olson decided that his clients deserved not just a lawyer who could argue a case but a lawyer who could change the political culture. “You had to attack it in a broad-scale way in the legislatures, in the arena of public opinion and in the courts,” he told me recently. “I felt the business community had to approach this in a holistic way.” He set out, in lectures and op-ed pieces, to publicize especially egregious examples. The poster child for punitive-damage abuse, widely derided in TV and radio ads paid for by the business community, was a New Mexico grandmother who, in 1994, was awarded $2.7 million in punitive damages when she scalded herself with hot McDonald’s coffee. The poster child for punitive-damage abuse, widely derided in TV and radio ads paid for by the business community, was a New Mexico grandmother who, in 1994, was awarded $2.7 million in punitive damages when she scalded herself with hot McDonald’s coffee 。 Consumer advocates countered that she had originally asked for $20,000 for medical expenses, which McDonald’s refused to pay, and the award appeared to have the effect of persuading McDonald’s to serve its coffee at a safer temperature. Consumer advocates countered that she had originally asked for $20000 for medical expenses, which McDonald’s refused to pay, and the award appeared to have the effect of persuading McDonald’s to serve its coffee at a safer temperature. Nonetheless, the campaign to vilify plaintiffs’ lawyers has been effective enough that the American Association of Trial Lawyers recently changed its name to the fuzzier American Association for Justice.

The business community made other inroads against punitive damages. Corporations financed campaigns against pro-punitive-damage state judges who had been elected with the assistance of large contributions from plaintiffs’ lawyers. The business community also helped persuade more than 30 states to either impose caps on punitive-damage awards or direct substantial portions of the awards to be paid into special state funds. In 1996, it helped persuade the Republican Congress, led by Newt Gingrich , to pass legislation that would cap punitive-damage awards in product-liability cases in every state court in the country. But in 1996, President Clinton, with what must have been perverse pleasure, vetoed the bill on the grounds that it violated principles of federalism and states rights to which conservatives claimed to be devoted.

Thwarted by Clinton, and unable to persuade Congress to override the veto, opponents of punitive damages turned their attention back to the Supreme Court, looking for a victory they were unable to win in the political arena. Here, they were remarkably successful. As late as 1991, the court had refused to impose limits on a large punitive-damage award. But in a case in 1996, the court held for the first time that punitive-damage awards had to be proportional to the actual damage incurred by the plaintiff. The case involved a man who said he was deceived by BMW when it sold him a supposedly “new” car that was, in fact, used and had received a $300 touch-up job. The court, in a 5-4 opinion, overturned a $2 million punitive-damage award as “grossly excessive.” In 2003, the court clarified what it meant: a single-digit ratio between punitive damages and compensatory damages was likely to be acceptable. The court, in a 5-4 opinion, overturned a $2 million punitive-damage award as “grossly excessive.” In 2003, the court clarified what it meant: a single-digit ratio between punitive damages and compensatory damages was likely to be acceptable 。

Last year, the business community watched with anticipation as Roberts and Alito revealed their views about punitive damages. The case involved the estate of a heavy smoker who sued Philip Morris for deceitfully distributing a “poisonous and addictive substance.” A jury had awarded the estate $821,000 in compensatory damages and $79.5 million in punitive damages — a ratio of about 100 to 1. The case involved the estate of a heavy smoker who sued Philip Morris for deceitfully distributing a “poisonous and addictive substance.” A jury had awarded the estate $821000 in compensatory damages and $79.5 million in punitive damages — a ratio of about 100 to 1. In a 5-4 opinion written by Breyer, the court held that it was unconstitutional for a jury to use punitive damages to punish a company for its conduct toward similarly affected individuals who are not party to the lawsuit.

This spring, the court will decide the Exxon Valdez punitive-damage case, which many consider the culmination of the business community’s decades-long campaign against punitive damages. In 1989, the Exxon Valdez tanker, whose captain had a history of alcoholism, ran into a reef and punctured the hull; 11 million gallons of oil leaked onto the coastline of Prince William Sound. A jury handed down a $5 billion punitive-damage award.

After the verdict, Exxon began providing money for academic research to support its claim that the award for damages was excessive. It financed some of the country’s most prominent scholars on both sides of the political spectrum, including the Nobel laureate Daniel Kahneman and Cass Sunstein, a law professor at the University of Chicago. (Sunstein says he accepted only travel grants, not research support, from Exxon; and Kahneman stresses that the financing had no influence on the substance of his work.) In a 2002 book, “Punitive Damages: How Juries Decide,” Sunstein studied hundreds of mock-jury deliberations and concluded that jurors are unpredictable and often irrational in punitive-damage cases. (Sunstein says he accepted only travel grants, not research support, from Exxon; and Kahneman stresses that the financing had no influence on the substance of his work.) In a 2002 book, “Punitive Damages: How Juries Decide,” Sunstein studied hundreds of mock-jury deliberations and concluded that jurors are unpredictable and often irrational in punitive-damage cases. Jury deliberations, he found, increase the unpredictability, as well as the dollar amount of the final awards. Sunstein concluded that a system of civil fines determined by experts, rather than punitive damages determined by juries, might be more sensible. When Exxon appealed the $5 billion verdict in 2006, it was reduced by an appellate court to $2.5 billion. The reduced verdict is once again being challenged as excessive.

Walter Dellinger, the lawyer now arguing Exxon’s case before the Supreme Court, is no Republican activist. Like Sunstein, he is one of the most respected Democratic constitutional scholars, as well as a former acting solicitor general for President Clinton. Last month, in his argument before the court, Dellinger argued that because Exxon has already paid $3.4 billion in fines, cleanup costs and compensation connected with the Exxon Valdez spill, and because it didn’t act out of malice or greed in failing to monitor the alcoholic captain, additional punitive damages would serve no “public purpose.” Last month, in his argument before the court, Dellinger argued that because Exxon has already paid $3.4 billion in fines, cleanup costs and compensation connected with the Exxon Valdez spill, and because it didn’t act out of malice or greed in failing to monitor the alcoholic captain, additional punitive damages would serve no “public purpose.”

During the argument, Breyer noted that the $2.5 billion punitive damage award represents a less than 10-to-1 ratio between punitive damages and compensatory damages, which is in the single-digit range that the Supreme Court has considered acceptable in the past. But Breyer also seemed concerned at other points that punitive-damage awards have not been routine in maritime cases like this one, and that the award might create “a new world for the shipping industry.” Alito, who owns Exxon Mobil stock, did not participate, and because a tie would affirm the $2.5 billion punitive-damage award, the plaintiffs who are opposing Exxon need only four votes to prevail. But Breyer also seemed concerned at other points that punitive-damage awards have not been routine in maritime cases like this one, and that the award might create “a new world for the shipping industry.” Alito, who owns Exxon Mobil stock, did not participate, and because a tie would affirm the $2.5 billion punitive-damage award, the plaintiffs who are opposing Exxon need only four votes to prevail. But whether Dellinger gets five votes, a significant triumph is already behind him: he persuaded the court to take the case in the first place.

VI.

Ted Olson and the Chamber of Commerce aren’t only trying to persuade the Supreme Court to cut back on large punitive-damage awards; they’re also arguing that consumers injured by dangerous or defective medical devices and drugs in some cases shouldn’t be able to file product-liability suits at all. Ted Olson and the Chamber of Commerce aren’t only trying to persuade the Supreme Court to cut back on large punitive-damage awards; they’re also arguing that consumers injured by dangerous or defective medical devices and drugs in some cases shouldn’t be able to file product-liability suits at all. Because there is no national product-liability law that allows federal suits for personal injuries, consumers who are injured by, say, defective heart valves or artificial hips have to sue in state courts under state tort law. By asking the Supreme Court to prevent injured consumers from suing in state court, the business community, supported by the Bush administration, is trying to ensure that these consumers often have no legal remedy for their injuries. And the Supreme Court has been increasingly sympathetic to the business community’s arguments.

In a Supreme Court case Olson argued in December, he stood before the justices and argued that the manufacturers of defective medical devices — like heart valves, breast implants and defibrillators — should be immune from personal-liability suits because the federal Food and Drug Administration had approved the devices before they were marketed and the manufacturers had complied with all federal requirements. The case involved Charles Riegel, who had an angioplasty in 1996 during which the catheter used to dilate his coronary artery burst. Riegel, who needed advanced life support and emergency bypass surgery, eventually sued the manufacturer of the catheter, Medtronic. The company is colloquially referred to in the business community as “the pre-emption company” because of its practice of arguing that the Food and Drug Administration’s “premarket approval” of its products pre-empts product-liability suits in state courts.

The lawyer representing Riegel’s estate before the Supreme Court, Allison Zieve of Public Citizen, countered that Congress never intended to ban state product-liability suits when Senator Edward Kennedy sponsored a bill regulating medical devices in 1976. (Kennedy himself filed a brief in the case noting that he indeed intended no such thing.) “Lawyers think this is a close issue, but any time I talk to a nonlawyer about it, they’re shocked,” Zieve told me after the argument. (Kennedy himself filed a brief in the case noting that he indeed intended no such thing.) “Lawyers think this is a close issue, but any time I talk to a nonlawyer about it, they’re shocked,” Zieve told me after the argument. “People think: of course, if somebody makes a defective product you can sue.”

It’s one thing to argue that the federal government’s “premarket approval” of food, drugs and medical devices should pre-empt clearly inconsistent state laws and regulations. After all, if states imposed safety requirements that conflicted with the federal standard, the resulting regulatory confusion would make a national (and global) market impossible. But Olson’s claim that federal regulation of medical devices and drugs should also pre-empt product-liability suits under state tort law is one of the more creative and far-reaching legal arguments of the business groups that litigate before the Supreme Court.

This type of argument arose out of the tobacco litigation of the 1980s and ’90s, which culminated in a $206 billion settlement paid by the top tobacco companies to a consortium of 46 state attorneys general in exchange for dropping tort suits against the companies. The tobacco litigation began modestly: in 1983, Rose Cipollone, a New Jersey woman dying of lung cancer, sued several of the country’s largest tobacco companies for their failure to give adequate warnings about the dangers of smoking. After spending tens of millions of dollars fighting the verdict, the companies decided to take their defense to the next level. They argued that because the federal government required cigarette companies to have warning labels, tobacco companies couldn’t be subject to tort suits in state courts. Jury verdicts, they argued, are no less a form of regulation than laws explicitly adopted by state legislatures.

In a decision in 1992, the Supreme Court endorsed part of the companies’ argument. The decision unleashed a torrent of similar “pre-emption” claims by the manufacturers of dangerous drugs, defective medical devices and cars without air bags. And after the election of President Bush in 2000, the business community’s crusade was aggressively supported by the White House. At the same time that the White House was scaling back on federal health-and-safety enforcement, it insisted that consumers should not be able to sue federally regulated industries in state court. Bush appointed as the general counsel of the Food and Drug Administration a former drug- and tobacco-company lawyer named Daniel Troy. With Troy’s support, the FDA reversed its position, held for 25 years, and argued for the first time that its premarket approval of medical devices should prevent injured consumers from bringing product-liability suits in state court.

After her Supreme Court argument in the Medtronic case, Zieve told me she wasn’t sure what to expect. Until the arrival of Chief Justice Roberts, groups like Public Citizen had found that they had a better chance of winning pre-emption cases before the Supreme Court than in the lower courts. But during the first two years of the Roberts Court, the justices had decided two pre-emption cases in favor of the corporate defendants.

The trend has continued. On Feb. 21, the Supreme Court handed Zieve a crushing defeat: an 8-1 opinion immunizing the makers of defective medical devices from product-liability suits. The lone dissent was written by Ruth Bader Ginsburg, who objected that Congress could not have intended such a “radical curtailment” of state personal-injury suits when it regulated medical devices in 1976. Ginsburg, who is devoted to liberal judicial restraint, has consistently opposed efforts to second-guess punitive-damage awards or expand federal pre-emption. I called Zieve soon after the Supreme Court issued its opinion, and she sounded shocked. “It’s really unfathomable to me,” she said. “I wasn’t sure that this was a business-friendly court, but now I’m finding it harder not to view it that way.” Zieve said that, as a result of the decision, “I think the industry will keep unsafe devices on the market longer and be slower to improve products.” “I wasn’t sure that this was a business-friendly court, but now I’m finding it harder not to view it that way.” Zieve said that, as a result of the decision, “I think the industry will keep unsafe devices on the market longer and be slower to improve products.”

In the eyes of advocates like Zieve and Public Citizen, the public is now caught in a Catch-22: at the very moment that agencies like the FDA are being strongly reproved by critics — including the agency’s own internal science board — for being unwilling or unable to protect public health, the court is making it harder for people to receive compensation for the injuries that result. In the eyes of advocates like Zieve and Public Citizen, the public is now caught in a Catch-22: at the very moment that agencies like the FDA are being strongly reproved by critics — including the agency’s own internal science board — for being unwilling or unable to protect public health, the court is making it harder for people to receive compensation for the injuries that result. On rare occasions, the Roberts Court has held that the Bush administration’s deregulatory efforts circumvent the will of Congress — like the 5-4 decision last year holding that the Environmental Protection Agency acted capriciously when it adopted a rule that said it had no legal authority to regulate greenhouse gases. On rare occasions, the Roberts Court has held that the Bush administration’s deregulatory efforts circumvent the will of Congress — like the 5-4 decision last year holding that the Environmental Protection Agency acted capriciously when it adopted a rule that said it had no legal authority to regulate greenhouse gases. But by and large, the Supreme Court defers to agencies that refuse to regulate public health and safety. “The industry has a lot of money, and they can routinely hire the biggest names in the biggest firms, while we’re doing it on our own,” Zieve told me. “We don’t charge anything — we’re free. It didn’t cost $250,000 to get us to write the brief.” It didn’t cost $250000 to get us to write the brief.”

VII.

The Supreme Court is unlikely to reconsider its pro-business outlook anytime soon. Nevertheless, there are several currents in American political life that run counter to the court, even if they may not be strong enough, or suitably directed, to reverse it. There are, for example, economic populists in both political parties — John Edwards Democrats and Mike Huckabee Republicans, to cite just two types — who express concern about growing economic inequality and corporate corruption, and blame unchecked corporate power for America’s escalating economic problems. These populists tend to be from the working and middle classes rather than the professional classes, and their numbers may be growing. In recent Pew surveys, 65 percent of Americans agreed that corporations make excessive profits — the highest number in 20 years. Moreover, about half the country now asserts that America is divided on economic lines into two groups — the “haves” and “have nots” — up from only 26 percent two decades ago. And the number of Americans who view themselves as “have nots” has doubled to 34 percent today from 17 percent in 1988. Responding to pressures from this demographic, a Democratic Congress — bolstered by states-rights conservatives — might well try to pass legislation to counteract the court’s recent decisions barring product-liability suits for defective medical devices.

What about the executive branch? It seems unlikely that John McCain , if he were elected president, would push back against the court: he has already pledged to appoint “judges of the character and quality of Justices Roberts and Alito,” rather than justices more devoted to states rights, like Scalia and Thomas. As for Barack Obama and Hillary Clinton, both have sounded increasingly populist notes in an effort to attract union and blue-collar supporters, ratcheting up their attacks on corporate wealth and power, singling out the drug, oil and health-insurance industries and promising to renegotiate the North American Free Trade Agreement. and Hillary Clinton, both have sounded increasingly populist notes in an effort to attract union and blue-collar supporters, ratcheting up their attacks on corporate wealth and power, singling out the drug, oil and health-insurance industries and promising to renegotiate the North American Free Trade Agreement. But despite their rhetoric, it is not clear that either candidate would actually appoint justices any more populist than Bill Clinton’s nominees. “I would be stunned to find an anti-business appointee from either of them,” Cass Sunstein, who is a constitutional adviser to Obama, told me. “There’s not a strong interest on the part of Obama or Clinton in demonizing business, and you wouldn’t expect to see that in their Supreme Court nominees.”

Still, the possibility does exist. If the economy continues to decline and blue-collar voters end up being crucial in the election, a Democratic president might appoint an economic populist to the Supreme Court as a kind of payback. Earlier this month, on the campaign trail in Ohio, Obama mentioned Earl Warren, who served as governor of California before becoming chief justice, as a model of the kind of justice he hoped to appoint. “I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through,” Obama said. He praised Warren for understanding that segregation was wrong because of the stigma it attached to blacks, rather than because of the precise nature of its sociological impact. Appointing a former politician to the court would almost certainly introduce a more populist element: the Supreme Court that in 1954 decided Brown v. Board of Education included, in addition to a former governor, three former senators, a former Securities and Exchange Commission member and two former attorneys general. Appointing a former politician to the court would almost certainly introduce a more populist element: the Supreme Court that in 1954 decided Brown v. Board of Education included, in addition to a former governor, three former senators, a former Securities and Exchange Commission member and two former attorneys general. (By contrast, the Roberts court is composed of nine former judges.)

Whatever happens in November, Robin Conrad says the Chamber of Commerce is prepared to lobby as hard as ever for the appointment of pro-business justices. “If we do have a Democrat president, and that president has opportunities to nominate to the court,” she said in our meeting as I glanced at her Hillary Clinton action figure, “we want to be able to express ourselves and work with that president.” Regardless of how many justices retire in the next presidential term, Conrad is confident that, having helped to transform the Supreme Court in less than 30 years, she and her colleagues can assure American business of a sympathetic hearing for decades to come. “If we do have a Democrat president, and that president has opportunities to nominate to the court,” she said in our meeting as I glanced at her Hillary Clinton action figure, “we want to be able to express ourselves and work with that president .” Regardless of how many justices retire in the next presidential term, Conrad is confident that, having helped to transform the Supreme Court in less than 30 years, she and her colleagues can assure American business of a sympathetic hearing for decades to come.

When I told Conrad that Ralph Nader told me that lawyers were leaving Public Citizen because they were tired of losing, she achieved a look of earnest concern. “I hope if they feel they’ve lost,” she said, “they lost for a good reason — not because they’ve been overpowered or muscled by the big, bad business community, but they’ve lost because reason won.”

Conrad looked at me squarely, and then added, “I guess if Ralph Nader wants to say we did him in” — she paused to weigh her words — “so be it.”

Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. He is the author, most recently, of “The Supreme Court: The Personalities and Rivalries That Defined America.”

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