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Sonia Sotomayor's Toughest Cases

hp5-26-09k.jpgThis can be a bit of a dull reminder, but contrary to what you're likely to hear in the next few months, the Supreme Court was not specifically formed to decide cases relating to abortion and affirmative action. For instance: There's a good argument that 2007's Commonwealth of Massachusetts et al. v. Environmental Protection Agency is the most consequential case the Court has decided in recent years. In it, the Court rebuked the Environmental Protection Agency for its refusal to evaluate carbon emissions as a harmful pollutant that can be regulated under the Clean Air Act. That led to this year's preliminary finding of endangerment, which is, in turn, expected to lead to regulation of carbon whether or not the Congress passes cap and trade legislation.

Similarly, for a taste of the cases the Supreme Court is going to begin hearing, turn your attention to Free Enterprise Fund v. PCAOB. "PCAOB" stands for the Public Company Accounting Oversight Board, a product of the Sarbanes-Oxley legislation that's "has the power to propose regulations for the accounting industry in the United States, and to propose orders and sanctions for firms that violate those regulations." The constitutionality of its structure is being challenged by a pro-business think tank that has also run campaigns against, yes, MoveOn.org and Austin District Attorney Ronnie Earl (his investigation of Tom DeLay, the Fund contended, was aimed at "the Bush free-market agenda.") For more on this case, see this post by former-SEC counsel Rick Pildes.

As of yet, there haven't been any particularly thorough analyses of Sonia Sotomayor general approach to questions of financial regulation, intellectual property, environmental protection, and so forth. But these are issues she's rather likely to face in the coming years. Periods of aggressive legislative action tend to be followed by eras of aggressive court challenge to that regulation. Think of the problems FDR had with the Court, or the long legal backlash against the Great Society. The Obama administration has to be thinking about how their own social policy innovations will fare against the inevitable legal counterassault.

Right now, President Barack Obama's agenda includes universal health care, cap and trade, and a comprehensive restructuring of the financial regulatory structure. Some of the questions are obvious -- Can the state really coerce people to purchase health insurance? Can Congress retroactively tax the bonuses of certain groups? -- and some are not. But all of those policies will face major challenges in the Court. And though liberals and conservatives alike are going to make sure they have a very clear idea of Sotomayor's stance on hot-button cultural issues, there will be rather less attention -- and so less certainty -- on her approach towards regulation, federal authority, and corporate power. But those issues may take the bulk of her time in the coming years, and be the most consequential questions for the legacy of the administration that's nominating her.

(Photo credit: Getty Images.)

By Ezra Klein  |  May 26, 2009; 12:00 PM ET
 
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Comments

Thanks for an excellent post which clearly describes what will be most substantial in Obama's appointments to the Supreme Court. Too many people swallow the press meme that the "hot button" political issues are all matter in Surpreme Court decisions. The Court's real impact is much wider and more powerful on citizens than Roe v Wade, etc. FDR's history and frustrations with the Supreme Court should be more widely understood and cited by reporters as background to any of Obama's choices. Thanks for bring these issues forward.

Posted by: glewiss | May 26, 2009 12:27 PM | Report abuse

whatever the future holds, it was still a very beautiful moment to hear her story, as she stood next to barack obama.
i watched sonia sotomayer this morning, with a nine year old girl, and an eleven year old boy.
they stopped what they were doing, and listened closely to her.
a woman who is beautiful on the inside, whose message is about humility, hardwork and responsibility.
i could tell that the children believed in her story, and i thought, what a great and accessible role model sotomayor is.
sometimes, it is even safe to turn on the news in front of children.
that is change that children can believe in.
and that is the most important kind of change we can start to create again in the midst of all of the brokenness.
we owe that to children.
it has been a long time coming.
i was so glad they got to hear sonia sotomayor before they went off to school.


Posted by: jkaren | May 26, 2009 12:28 PM | Report abuse

Great post. Excellent really. And it is the reason your friend Matt's "suggestion" that putting Oprah on the court wouldn't be so bad was so ridiculous.

Posted by: Castorp1 | May 26, 2009 1:35 PM | Report abuse

Some of the questions are obvious -- Can the state really coerce people to purchase health insurance?

I would think that would be a pretty settled issue. If the state can force you to carry auto insurance in order to drive I would think it could force you to carry health insurance in order to be treated in a US hospital.

Posted by: flory | May 26, 2009 2:52 PM | Report abuse

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