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總部的美國商會，位於對面的拉法葉公園，在華盛頓，是一個石灰岩結構看起來幾乎一樣雄偉壯觀的作為 Supreme Court最高法院 . 。 The similarity is no coincidence: both buildings were designed by the same architect, Cass Gilbert.相似並非巧合：無論建築設計，由同一建築師，中國社會科學院吉爾伯特。 Lately, however, the affinities between the court and the chamber, a lavishly financed business-advocacy organization, seem to be more than just architectural.不過最近，親和力和國際刑事法院間會議廳，一個寬厚融資業務宣傳組織，似乎更不僅僅是建築。 The Supreme Court term that ended last June was, by all measures, exceptionally good for American business.最高法院的任期結束，去年6月，通過各種措施，在特殊情況良好，為美國商界。 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.總商會的訴訟中心提交了15例，其副作用韓元13人-佔最高比例的勝利，在該中心的3 0年的歷史。 The current term, which ends this summer, has also been shaping up nicely for business interests.本屆任期內，其中完這個夏天，也已形成了很好的商業利益。

I visited the chamber recently to talk with Robin Conrad, who heads the litigation effort, about her recent triumphs.我參觀了議事廳最近跟羅賓康拉德負責人，訴訟的努力，她最近的勝利。 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，是一個有吸引力，說話溫柔女人，生活，她的家人對馬的農場，在馬里蘭州，在那裡她和火球狐狸追逐俱樂部所謂的霍華德縣鐵橋獵犬。 Her office, playfully adorned by action figures of women like Xena the Warrior Princess and她的辦公室， playfully飾以行動人物的婦女一樣，這顆勇士與公主 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見，在華盛頓舉行。 “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，白宮通過結構樹，她說： "正如我們peered透過窗戶俯瞰公園。 “In the old days, you could actually see people bathing in the fountain. "在舊時代，你其實可以看到人們沐浴在噴泉。 Homeless people.”無家可歸的人" 。

Conrad was in an understandably cheerful mood.康拉德是一個可以理解的愉悅之情。 Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests.雖然目前最高法院有一個良好的聲譽，贏得了為分化，但已令人吃驚，在美國的情況下，影響商業利益。 Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes.對30個商業案例上一屆，有22人一致決定，或只有一個或兩個反對的票數。 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.康拉德說，她特別高興的是，一些最重要的決定，書面，由大法官自由，我為自由與保守的同事一樣。 In opinions last term,在意見上來說， 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斯蒂芬陣營和David Souter ）每失控，他或她的方式來質疑利用訴訟來挑戰公司不法行為-一項戰略倡導的漸進式群體像 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.’ ”但照例譴責，也遭到了保守派的"規管的訴訟" 。康拉德一連說出她的一些最喜愛的時刻： "正義金斯伯格談及如何'私人證券欺詐行動，如果不能充分控制，但可以受聘濫用'正義陣營進行了精彩報價如何國會試圖'淘汰理證券官司'正義Souter ）談到如何訴訟威脅'將推動成本意識的被告，以解決" 。

Examples like these point to an ideological sea change on the Supreme Court.例子一樣，這點，以意識形態海面變化對最高法院。 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.一個世代以前，進步和消費者團體的請願，法院可以指望得到良好的多數意見撰寫的法官，他們認為，大企業與懷疑論-或什至乾脆偏見。 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.”經濟民粹主義一樣，威廉澳道格拉斯，前新政十字軍的人送達法院，從1939年至1975年，一旦unapologetically宣布，他"隨時準備再度拗折法有利於環境和對公司的" 。

Today, however, there are no economic populists on the court, even on the liberal wing.但是，今天，有沒有經濟民粹主義對法院，甚至是對自由翼。 And ever since和自 John Roberts約翰羅伯茨 was appointed chief justice in 2005, the court has seemed only more receptive to business concerns.被任命為首席大法官， 2005年，法院似乎只有更容易接受商業焦點。 Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years.百分之四十的情況下，法院聽取了上一屆涉及商業利益，從30 ％左右，在近幾年。 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.而倫奎斯特法院聽取了不到一反托拉斯決定，在一年中，平均在1988和2003年，羅伯茨在法庭聽取七名在首兩個條件-所有這些就決定了有利於該公司的被告。

Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty.商業案例在最高法院通常獲得較少受到關注，只是個案的問題，如扶持行動，流產或死刑。 The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional.糾紛往往很難追踪：法律論點，主要是技術性的，背後的故事，那麼情緒化。 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.但這些案件-其中包括股東訴訟，反托拉斯法的挑戰，以企業兼併，專利糾紛，並努力減少懲罰性損傷獎項和防止產品責任訴訟-沒有那麼重要了。 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.它們涉及數十億美元，但有很大的後果，為經濟和能有一個更大的影響，對人們的日常生活中較常象徵性戰役的文化戰爭。 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，大法官會議已封鎖了一條法律責任起訴美敦力，製造商的心臟導管，並拒絕了一類股東的訴狀中指出，包括聲稱對安然。 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.在未來的幾個月中，法庭將決定是否減少最大的懲罰性損傷獎，在美國歷史上，這是由埃克森瓦爾迪茲石油洩漏，在1989年。

What should we make of the Supreme Court’s transformation?我們應該怎樣做出的，最高法院的轉型？ 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.在其整個歷史中，法院已趨於問題的意見，在地區，從言論自由到兩性平等，即反映或鞏固社會共識。 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.與其親商判例，法官可以捕捉一個新興的精神一致，自由和保守的精英約的價值的自由市場。 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.各專業班，許多民主黨人和共和黨人，無論其其它分歧，來分享一個比較自由放任的，技術官僚的遠見經濟和可疑的過分規管和自反努力醜化大生意。 Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception.法官，律師和法學教授（像我這樣的）鑽井成本效益分析，在過去的30年裡，沒有任何例外。 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.它應該並不令人意外約翰羅伯茨和Stephen陣營，他們兩人都在研究法律的經濟分析，在哈佛大學，有類似的本能，在商業案例。

This elite consensus, however, is not necessarily shared by the country as a whole.這個精英共識，但並不一定是由國家作為一個整體。 If anything, America may be entering something of a populist moment.如果有的話，美國可能會進入某種民粹主義的時刻。 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.如果你把群體的美國人在最近皮尤調查的人，都說他們對一些應變的經濟民粹主義-從心懷不滿的和保守的民主黨人，以傳統的自由派人士，以社會和大政府保守派-至少有三分之二的選民都可以說是同情政府對經濟的干預。 Could it be, then, that the court is reflecting an elite consensus while contravening the sentiments of most Americans?可它，那麼，該法院是反映一個精英共識，而違反的情緒，大多數美國人？ Only history will ultimately make this clear.只有歷史最終會做出清楚說明這點。 One thing, however, is certain already: the transformation of the court was no accident.一件事，不過，可以肯定已經：改造法院是沒有發生意外。 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.它代表了一個頂峰經過周密策劃的，幕後運動幾十年的時間才能改變，不只有法庭，而且該國的政治文化。

II. 二。

The origins of the business community’s campaign to transform the Supreme Court can be traced back precisely to Aug. 23, 1971.起源商業界的運動變換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.這是一天的時候，劉易斯，鮑威爾樓小公司的律師在里士滿，弗吉尼亞州，寫了一份備忘錄給他的朋友尤金乙snydor ，那麼，主管教育委員會，美國商會。 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,在備忘錄中，鮑威爾對此表示關切，即美國的經濟制度是"根據廣泛的攻擊" ，他確定了幾個侵略者：新左派，自由的媒體，叛逆學生的大學校園裡，而最重要的 Ralph Nader納德 . 。 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.今年早些時候，納德在全國范圍內成立公共公民，倡導消費者權益，使反托拉斯行動的時候，美國司法部並沒有控告聯邦機構的時候，他們沒有能夠通過健康和安全法規。

Powell claimed that this attack on the economic system was “quite new in the history of America.” Ever since 1937, when President鮑威爾聲稱，這次襲擊事件對經濟體制是"很新，在歷史上的美國"自從1937年，當總統 Franklin D. Roosevelt羅斯福 threatened to pack a conservative Supreme Court with more progressive justices, the court had largely deferred to federal and state economic regulations.揚言要收拾一個保守的最高法院與更進步的法官，法院已大致推遲到聯邦和州的經濟法規。 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，最高法院根據終審法院首席法官厄爾華倫曾接受某種形式的經濟民粹主義，往往偏袒的利益，小企業比大企業，甚至不惜犧牲消費者的利益。 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.”但鮑威爾看到了這項工作的納德等人，是完全更極端：一種激進運動，那是"有廣泛基礎的，並一貫奉行" 。

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.為了對付越來越大的影響力的公眾利益訴訟群體，如公眾的公民，鮑威爾敦促商業總會開始multifront遊說活動，代表企業的利益，包括僱用頂級商務律師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 "司法機構" ，鮑威爾預測說： "可能是最重要的工具，為社會，經濟和政治變革" 。兩個月後，他寫出了備忘錄中，鮑威爾被任命為所 Richard Nixon尼克松 to the Supreme Court.向最高法院上訴。 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年後，在1977年後，穩步拓展其遊說的努力，該庭建立了全國商會訴訟中心，以檔案案件和內褲代表企業的利益，在聯邦和州法院。

Today, the Chamber of Commerce is an imposing lobbying force.今天，該商會是一個強加的遊說力量。 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.為了履行自己的使命，服務"的統一利益的美國商界" ，它收集會員費從300多萬企業和相關組織的合作;去年，根據該中心為順應政治，會議廳用了超過2100萬美元的遊說白皮書府，國會和監管機構的法律事務。 But its battle against the forces of Naderism got off to a slow start.但其對抗的力量naderism下車，一開始進展較慢。 In 1983, when Robin Conrad arrived at the chamber, the Supreme Court was handing Nader and his allies significant victories.在1983年，當時羅賓康拉德來到會議廳，最高法院是交出納德和他的盟友的重大勝利。 That year, for example, the court held that這一年，舉例來說，法院認為， President Reagan裡根總統 ’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.奇摩運輸部長安德魯劉易斯的影響小，任意行事的時候，他已廢除的規例，靈感納德的宣傳工作，這需要汽車製造商安裝的被動約束，像安全氣囊。 In 1986, the chamber supported a challenge to the在1986年，商會支持的一個挑戰了 Environmental Protection Agency環境保護局 ’s aerial surveillance of a Dow Chemical plant.奇摩空中監視一個陶氏化學廠。 The chamber’s side lost, 5-4.總商會的一方敗訴， 5-4 。

But eventually, things began to change.但最終，事情開始發生變化。 The chamber started winning cases in part by refining its strategy.香港總商會就開始拿冠軍案件部分由精煉自己的戰略。 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.與康拉德的幫助下，總商會的最高法院的訴訟程序開始提供實踐的模擬法庭的論點為律師定辯稱要案。 The chamber also began hiring the most-respected Democratic and Republican Supreme Court advocates to persuade the court to hear more business cases.該商會也開始僱用最敬重的民主黨和共和黨，最高法院主張，以說服法庭聽取更多的商業案件。 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.雖然有很多的企業，屬於該商會已各自在公司內部律師，他們將有商會檔案"的朋友，法院"內褲就代表他們。 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.香港總商會將決定其中的許多情況下，提請其注意的是在長遠的戰略利益的美國商界，然後聘請了領先的商業律師寫支持內褲或爭論的情況。

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，現在還沒有一個有組織集團的律師事務所專門業務爭論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，獺議員，律師一般裡根下，離開了政府，開始對最高法院上訴的做法，在企業sidley奧斯汀。 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.李的目標是提供企業客戶同樣水平的專家代表權之前，最高法院認為，律師的辦公室提供給聯邦機構。 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師事務所聘請前最高法院書記員和前任議員的律師一般的辦公室展開商業行為。 The Chamber of Commerce, for its part, began to coordinate the strategy of these lawyers in the most important business cases.該商會青年委員會，就其本身而言，就開始以協調戰略的這些律師，在最重要的商業案件。

At times, the strategic calculations can be quite personal.有些時候，戰略計算，可以很個人的。 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.因為最高法院書記員有很大的影響，在提出建議什麼情況下，法院應聽聽，康拉德告訴我，有著名的前書記員參與提交了一份簡短的，可以特別重要的意義。 “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. "當大法官奧康納被放在替補席上，我們知道她的票是很重要的，我們有一個的情況下，反對派她最喜愛的秘書就簡短的，所以我們保留了她的下一代最喜愛的秘書， "她笑著說。 “We won.” "我們贏了" 。

In our conversation, Conrad was especially enthusiastic about Maureen Mahoney, a former clerk for Chief在我們的談話中，康拉德是特別熱衷於陳梁夢蓮mahoney ，一名前秘書行政 Justice Rehnquist大法官倫奎斯特 and one of the top Supreme Court litigators who coordinate strategy with the chamber.及一個頂尖的最高法院訴訟人負責協調戰略與會議廳。 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.當mahoney同意，在2005年代表呼籲，由蒙羞會計師事務所安達信公司，其中被裁定罪名成立，在2002年的妨礙司法切碎文件涉及到審計安然，很少人想到，最高法院將採取如此。 “The climate was very anti-Enron,” Mahoney told me, “and it was viewed as a doomed petition.” "氣氛是非常反安然， " mahoney告訴我， "它被認為是一個注定請願書" 。

Mahoney rehearsed her Supreme Court argument in a moot court sponsored by the chamber. mahoney排練，她最高法院的說法，在模擬法庭主辦的會議廳。 (“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. （ "她是絕對令人眼花繚亂的" ，林鉅成回憶說。 ）就2005年4月27日， mahoney站在從容前大法官會議，並作了最好的時期之一口頭辯論，我已經見過，在最高法院審理。 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.她說，正因為安達信會計師遵循了一個標準的文件銷毀程序，在未接獲政府的傳票，但他們不能被裁定犯罪的，他們並不知道他們做些什麼，是犯罪行為。 The Supreme Court unanimously agreed and reversed the conviction, 9-0.最高法院一致同意，並一舉扭轉了信念， 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.在安達信事件就是一個很好的例子，如何顯著，最高法院已改變態度，對案件涉及的證券欺詐行為-和業務的情況更加普遍-從沃倫，以羅伯茨時代。 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.在一個案件中， 1964年，法院裁決感到不滿，投資者和消費者可以提出私人訴訟，以執行證券法律，甚至在這些案件中，國會沒有明確創造了一個有提出控告的權利。 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世紀90年代中期，但是，國會大幅削減對這些公民訴訟，法院今天已表現出缺乏耐心給他們。 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說，她認為她的勝利，在安達信案件為重要，因為它適用同樣的原則，在刑事案件中，涉及公司的不法行為，該法院已經承認在民事案件中，即： "拒絕創造更大的損害補救辦法或刑事處罰比國會已明確規定" ，她描述的情況，因為"一個非常重要的勝利生意" 。

This term, the Supreme Court has continued to cut back on consumer suits.這個名詞，最高法院繼續削減對消費者的西裝。 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.在執政黨在今年1月份，法庭拒絕讓一名股東起訴該供應商Charter通信，其中一個是全國最大的有線電視公司展開競爭。 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.該供應商被指控有"教唆及協助"憲章的努力，以誇大其收益，但法院認為，憲章的投資者已經表明他們是靠這種欺騙行為，由供應商之前，西裝，可以繼續進行。 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.一個星期後，法院援用同一原則的時候，它拒絕審理上訴案件有關安然公司，其中投資者正設法收回40000000000美元來自華爾街的銀行表示，他們聲稱教唆及協助安然公司的欺詐行為。 As a result, the shareholder suit against the banks may be dead.因此，股東起訴該銀行可能已經死亡。

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.除了訴訟，法院受理的案件，商會的代表也遊說國會和白宮在努力改變法院的組成本身。 (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 （不像許多其他政府官員，法官們自己的，當然不會，但須直接遊說公司） ，總商會在這方面的努力受到啟發 Robert Bork羅伯特伯克 ’s thwarted nomination to the court in 1987.奇摩挫敗提名，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.商業團體均熱烈約伯克-不是因為他的保守社會意見，但因為他是持懷疑態度，在嚴厲的反壟斷執法工作。 “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. "的反應，向伯克的提名，它擊中了我們，我們甚至沒有一個過程，在地方為一名球員， "康拉德說。

So the chamber set up a formal process for endorsing candidates after their nominations.因此商會成立一個正式的過程中，為確認候選人後，他們的提名。 The process was designed to be bipartisan; and the chamber has encouraged Democratic as well as Republican presidents to appoint justices.該進程的目的是為了得到兩黨和商會一直鼓勵民主黨以及共和黨總統任命的大法官。 Nominees are evaluated solely through the prism of their views about business.參選人是評價僅僅通過棱鏡他們的意見，對業務。 “We’re very surgical in our analysis,” Conrad said. "我們很手術，在我們的分析， "康拉德說。

After the election of選後的 Bill Clinton比爾克林頓 , 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. ，舉例來說，該庭通過在州金斯伯格，他們除了她的開創性成就，為團長的婦女權益的項目在美國民權聯盟有專門的，作為一個法學教授，在程序規則，在複雜的民事案件，並於舒適與細密點營業訴訟。 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.香港總商會是特別熱衷於克林頓的第二代名人，斯蒂芬陣營，他們作出了自己的名字建立一個跨黨派的共識，為航空公司違規作為一個特殊的律師對司法委員會主席，以及誰，作為一個哈佛大學法學教授，主張一個有影響力和溫和的看法對反壟斷執法工作。

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.在陣營的確認聽證會，他尖銳的批評者是納德的人作證說，他的親商界的裁決"非常是片面的" 。另一個影評人，參議員霍華德metzenbaum俄亥俄州立說，事實上，香港總商會是第一個組織贊成陣營表示， "大公司很高興看到這一提名" ， "事實，即納德是反對它表示，美國人的平均年齡有一個理由，有一些關切。 "分庭的imprimatur有助於安撫共和黨人約陣營，他被證實的一票， 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. "坦率地說，我們並不覺得像我們任何人對法院，因為司法鮑威爾誰真正理解業務問題， "康拉德告訴我。 “Justice Breyer came close to that.” "正義陣營來到接近這一界限。 "

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該陣營和金斯伯格提名還來到在這個時候，自由以及保守的法官和學者分別受引力越來越多地向經濟的辦法，以法律的，本來發達，在 University of Chicago芝加哥大學 . 。 The law-and-economics movement sought to evaluate the efficiency of legal rules based on their costs and benefits for society as a whole.該法律和經濟學運動旨在評估效率的法律規則，根據自己的成本和效益，為社會的整體利益。 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.雖然原本保守的方向，以不結盟運動還吸引了突出溫和自由派學者和法官一樣陣營，他們以前對自己的提名寫了兩本書，對調控，認為政府的健康和安全開支是扭曲轟動媒體報導災難的影響相對較少的市民。

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，陣營也一直是一個智力領導人在反壟斷和專利糾紛，往往窖商業對商業，而不是商業對消費者。 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.在這種情況下，許多自由派學者同情經濟分析都熱烈鼓掌，法院偏袒競爭，而不是現有的競爭對手，創新，而不是特別革新者。 “The court deserves credit for trying to rationalize a totally irrational patent system, benefiting smaller new competitors rather than existing big ones,” says "法院的功勞要理順一個完全不合理的專利制度，受益較小的新的競爭者，而不是現有大的，放活" Lawrence Lessig的Lawrence Lessig , an intellectual-property scholar at Stanford. ，智慧財產權學者在斯坦福大學。

Clinton’s nominations of Ginsburg and Breyer may have been welcomed by the chamber, but with the election of克林頓的提名金斯伯格，並陣營可能會受到普遍歡迎會議廳，但隨著選舉 George W. Bush布什 , the chamber faced a dilemma.時，分庭面臨的困境之一。 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.自從裡根政府已經有了隔膜對右翼的法院之間務實的自由市場保守派，他們通常有利於商業利益，意識形態的國家人權保守派。 In some business cases, these two strands of conservatism diverged, leading the most staunch states-rights conservatives on the court,在一些商業案例，這兩個方向的保守主義分道揚鑣，領導最堅強的國家人權保守派對法院， Antonin Scalia倫奎斯特 and及 Clarence Thomas克拉倫斯托馬斯 , to rule against business interests. ，以避免商業利益。 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.大法官和托馬斯不願意第二大猜想懲罰性損傷一審宣判後，由國務院陪審團，例如，或認為聯邦調節的香煙製造商，可以不被起訴的國家法院。 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，根據康拉德的領導下，商會就開始積極活動，敦促布什政府任命親商界的保守派。

When it came time to replace Chief Justice William Rehnquist and Justice當它來到的時候，以取代首席大法官倫奎斯特和大法官 Sandra Day O’Connor桑德拉戴奧康納 , 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. ，候選最熱情支持，由國家版權保守派法官邁克爾luttig ，有破紀錄就上訴法院第四巡迴一些企業的利益，恐怕會令他難以預料的，在商業案例。 (“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. （ "我的一個常數不再是守舊，並不一定意味著被親商" ，康拉德告訴我的）商會及其他商業團體的熱情支持約翰羅伯茨，他們已聘請了由商會寫內褲在兩最高法庭案件中， 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.在時間的羅伯茨的提名，托馬斯Goldstein表示，一個突出的最高法院訴訟律師，形容他為"牽線，以律師為企業共同體" ，加入"的所有候選人，他就是一個，他們知道最好的" 。當羅伯茨被提名，商業團體遊說參議員作為營銷活動的一部分，他的確認。

The business community was also enthusiastic about商業界也熱衷 Samuel Alito塞繆爾阿利托 , whose 15-year record as an appellate judge showed a consistent skepticism of claims against large corporations. ，其15年的紀錄，作為一個上訴法官表明一貫持懷疑態度的索賠針對大公司。 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.特德坦率的美國企業研究所預測，在時間的提名，如果阿利托代替奧康納，他和羅伯茨會帶來業務量上升，案件提交最高法院。 Frank’s prediction was soon vindicated.坦率的預言很快就被平反。

“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. "不是很大的興趣，經典商業案例，在過去數年的倫奎斯特法院， "卡特菲利普斯另一位合夥人sidley奧斯汀和領導最高法院商務主張，告訴我。 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，法官理查德波斯納，創始人之一，法律和經濟學運動，爭辯說，倫奎斯特法院的重點放在大標題觸目憲政案件政治化，並呼籲有關法院審理更多的商業案件。 The Roberts court has unambiguously answered the call.羅伯茨法院已毫不含糊地回答了電話。 As Phillips told me, Roberts “is more interested in those issues and understands them better than his predecessor did.”由於菲利普斯告訴我，羅伯茨" ，是比較有興趣在這些問題，並了解他們勝過他的前任" 。

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業總會一直在最高法院？ 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.雖然法院目前正在接受低於2 ％的10000請願活動，它得到每一年中，商會青年委員會的請願活動之間， 2004年和2007年分別授予一率為26 ％ ，據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.並說服最高法院審理一宗案件一半以上的戰鬥：理查德拉撒路，一名國際法教授喬治城人，也代表了對環境的客戶在法庭上，最近冉人數，並發現該法院推翻了下級法院在65 ％左右該情況下，同意聽取和當信訪人的代表是精英最高法院主張經常聘請的會議廳，成功率上升到75 ％ 。

Faced with these daunting numbers, the progressive antagonists of big business are understandably feeling beleaguered and outgunned.面對這些嚴峻的人口數量，漸進拮抗劑的大生意，是可以理解的情緒困擾及所獲。 “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，法院一般是不會被一個連一個，說： "大衛vladeck ，曾經工作，為市民的公民訴訟，集團目前任教於法喬治敦。 “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.” "目前我們一方，以簡短的兩年內，與工業界在另一邊，一個協調良好的運動， 10個或12個內褲，每一個寫的一員精英最高法院律師說，處理一個問題，在巨大的深度" ，他補充說， ruefully ， "你佩服他們的手工，但太令人沮喪了，因為地獄來處理" 。

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，我最近拜訪了納德的，幾個星期前，他宣布，他最近競選美國總統。 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.這是一個驚喜地發現，他的辦公室外，該中心為研究反應法，股份地址在隆重的自身建設，同卡內基研究所的科學。 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.但是辦事處本身放心的，是埋藏於地下，而納德收到我在一個會議桌四周檔案櫃塞著褪了色的舊的母親瓊斯和民族。

Nader was uncontrite about his 2000 run against納德是uncontrite對他來說， 2000年對 Al Gore戈爾 — 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. -這是常記與幫助布希總統寶座-以及他堅持認為，因為克林頓任命的大法官一樣陣營後，戈爾會也做了相同的。 “Breyer hasn’t been worse than I feared, because I had real concern when he was nominated,” Nader told me. "陣營並沒有壞，比我擔心的，因為我真正擔心的時候，他獲得提名， "納德告訴我。 He conceded that, like Breyer, Democratic justices appointed by President他承認，像陣營，民主大法官任命總統 John Kerry克里 would presumably have been better on civil rights and liberties than John Roberts and Samuel Alito.大概會得到更好的對公民權利和自由，比約翰羅伯茨和塞繆爾阿利托。 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.不過，他還是貶陣營視為"撤銷準ideologue " ，他們能織"的掛毯幻覺" ，在他的論點正確處理在抽象的。

The main casualty of the 2000 run, Nader said, is that he is no longer collaborating with America’s trial lawyers.主要傷亡的2000年來說，納德說，是因為他已不再是與美國的審判律師。 They would ordinarily be his natural allies in representing consumer interests, but they donated heavily to Gore’s campaign.他們一般都將其天然的盟友在代表消費者利益，但他們捐贈了大量的戈爾的競選。 After 2000, the trial lawyers “have been vitriolic,” Nader explained. 2000年後，審判律師" ，已成為硫酸， "納德解釋。 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.他指責他們不使用他們的錢，以幫助抵消的影響，總商會及其他商業團體在聯邦法院審理。 In part as a result of their stinginess, he said, his colleagues at Public Citizen are underfinanced and worn down.部分原因是由於他們的吝嗇，他說，他的同事們在公眾公民是資金不足和拖垮。 “There were some lawyers who left Public Citizen because they got tired of losing,” he said. "也有一些律師，他們離開公共公民，因為他們厭倦了虧損， "他說。 “Everyone is desperately trying to hold on to whatever issues are left, and then they become demoralized and discouraged.” "每個人都拼命要堅持對什麼問題都離開，然後他們變得意志消沉和氣餒" 。

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.三十年後，該商會的成立，其訴訟中心，以抗衡他的影響力，納德所有，但不能讓步的失敗，在爭奪最高法院。 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.與衰落的經濟民粹主義在國會中，削弱工會和全球化的崛起，政治氣候下，他哀嘆道，是通過他的。 “I recall a comment by Eugene Debs,” Nader said, looking at me intensely. "我記得一位評論尤金debs ， "納德說，看我緊張地。 “He said: The American people live in a country where they can have almost anything they want. "他說：美國人民生活在一個國家，他們可以有幾乎任何他們所想的。 And my regret is that it seems that they don’t want much of anything at all.”我的遺憾是，他們似乎並不想得多，什麼都沒有。 "

Nader chuckled quietly and shook his head.納德悄悄地如數家珍，並搖搖頭。 “I say ditto.” "我說，同上" 。

V. 五。

If there is an anti-Nader — a crusading lawyer passionately devoted to the pro-business cause — it is Theodore Olson.如果有一個反納德-c rusading律師慷慨激昂地投入到親商的原因-那是西奧多奧爾森。 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.其中最有影響力的最高法院倡導者和一名前律師一般根據美國總統布什，奧爾森的是，他還贏得論點之前，最高法院在布什訴戈爾在2000年。 But Olson has devoted most of his energies in private practice to changing the legal and political climate for American business.但奧爾森花了他的大部分精力從事私人執業，以改變法律和政治氣候，為美國商界。 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.據他的同輩中的精英最高法院律師，他比任何人更是負責改造的方法之一，最重要的法律問題，美國商界：懲罰性損害賠償，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.懲罰性損害賠償金-貨幣授予民間陪審團除了頒發任何實際損害的，受害人遭受了-旨在懲罰特別惡劣的行為，企業的不當行為所造成的惡意或貪欲，以防止類似違法行為的未來。 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世紀，法院一般要求明確指定故障的情況下，受害者的控訴為受傷所造成的失靈的產品。 It was hard for plaintiffs to recover in personal-injury cases unless the corporation was obviously at fault.令人難以理解原告，以收回在個人傷害案件，除非該公司有明顯過錯。 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世紀，在法律責任的案件涉及一個迅速擴大的階層有潛在危險的產品，如汽車，藥品和醫療器械的，法院越來越適用標準"嚴格法律責任" ，其中認為，製造商應支付他們是否直接在故障。

The animating idea was that manufacturers were in the best position to prevent accidents by improving their products with better design and testing.該生動活潑的想法是，廠家在最好的位置，以防止意外的發生，改善他們的產品與更好的設計和測試。 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.他們和他們的保險公司（而不是整個社會） ，將該項費用的事故，所以給他們一個激勵，以使他們的產品更加安全。 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.鼓舞納德的書， "不安全的，在任何速度" ，發表在1965年，全國法院開始見到車禍，因為可預見的事件，更有效地汽車設計本來可以預防的。 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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