Doug: "We are perhaps down to one conservative on the Court."
Bigdog: "And there has been plenty of literature of how the current SC is among the most pro-business in history."
GM: "There is a critical difference between being "pro-business" which can mean "pro-big contributors who bought access to public funds and get laws passed to suppress competition" and pro-free market."
Crafty: "Yes."
Bigdog: "Agreed. But "conservative" is a wide enough description encompass both."
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Conservatism does not encompass support for big contributors to buy access to public funds and preferential treatment. True that elected officials who said they were conservative have done this, but it is the exact opposite of all conservative principles, judicial, economic or political, as I understand them.
Not cited by anyone here, but an example of what the literature views as a pro-business decision is Kelo, where big 'business' was the alleged winner over the homeowners. This is a conservative win only if conservatism has no meaning. Business in bed with government power is government, not free enterprise. Like Wickard, Obamacare, and so many others, this was a case of big government expanding its own central planning and control powers over the most basic rights of citizens. It gives government-connected enterprises a path around free market constraints get what they want using the methods of fascism, not freedom. I've been to the private takings court and lost. In New London it was homeowners, but more often the victims of private takings are smaller businesses without government ties in favor of government's deeper pocket cronies.
Growing your own food on your land to feed your own animals is a Court-upheld, federal offense from the 1930s. The pattern of the more recent rulings has not been to uphold, strengthen and expand on these powers. Where, in the last 30 years, did the 'conservative' Court roll back any of the excesses of the New Deal era? If it did, I missed it.
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"We are perhaps down to one conservative on the Court."
There are quite a few Justice Thomas sole dissent opinions on the record. I'll post one in its entirety below, NFIB v. Sebelius (a.k.a. Obamacare), in which Thomas disagreed with the court's "substantial effects" test established in the Wickard, Morrison, and Gonzales rulings. Where are the others on this? I could be wrong, but I took from their silence that they do not support his call to reconsider the precedents that authorized these massive federal government powers at the expense of liberty.
Justice Thomas, NFIB v. Sebelius dissent, June 2012, with no one joining:
I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and The Chief Justice correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate “economic activity [that] substantially affects interstate commerce.” United States v. Lopez, 514 U. S. 549, 560 (1995) . I adhere to my view that “the very notion of a ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (Thomas, J., concurring); see also Lopez, supra, at 584–602 (Thomas, J., concurring); Gonzales v. Raich, 545 U. S. 1–69 (2005) (Thomas, J., dissenting). As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.
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The Kelo decision contained another Justice Thomas opinion with no one joining him. This is only an excerpt of a longer opinion.
Kelo v. New London, Justice Thomas dissenting, June 2005
Long ago, William Blackstone wrote that “the law of the land … postpones even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134—135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “ ‘[P]ublic [P]urpose’ ” Clause, ante, at 9—10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante, at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante, at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”
I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. Ante, at 1—2, 8—13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them. ... More at link:
http://www.law.cornell.edu/supct/html/04-108.ZD1.html
