No one who has paid attention to Supreme Court Justice Antonin Scalia’s judicial philosophy should be surprised to learn that his son Eugene is a stickler for government following the rules when it regulates our lives. The latest Bloomberg Businessweek documents Scalia’s role in fighting the government in court.
Scalia’s approach is as unflashy as it is effective: He uses the government’s own rules against it. A 1946 law requires agencies to take into account public comments about the impact their regulations would have, to avoid enacting policies in an “arbitrary and capricious” manner. In case after case, Scalia has convinced the court in Washington that the SEC failed to do that. He also invokes a 1996 law that calls for the agency to consider the economic consequences of its rules to promote efficiency and competition. In one case the SEC produced a 60-page economic analysis to combat Scalia’s argument that its rules went too far. That didn’t impress the court, which said the commission had “inconsistently and opportunistically framed the costs and benefits.” Scalia “has proven himself again and again in this area,” says David Hirschmann of the Chamber of Commerce, which hired him to argue three cases against SEC regulations on behalf of its members, among them large corporations and Wall Street firms.