The Roberts Court and Business Revisited

Tomorrow morning the Senate Judiciary Committee will hold a hearing on “Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings Will Affect Corporate Behavior.” According to Committee Chairman Patrick Leahy (D-VT), the hearing is the latest in a series examining “how the Court has misinterpreted laws meant to protect consumers and employees, shielded corporations engaged in misconduct, and overturned well-settled precedent.” The hearing will examine three of the Supreme Court’s most recent decisions, Wal-Mart v. Dukes, Janus Capital Group, Inc. v. First Derivative Traders, and AT&T Mobility v. Concepcion, and will feature Wal-Mart plaintiff Betty Dukes.

The hearing is intended to reinforce the claim that the Roberts Court is “pro-business” and focuses on three cases in which business interests prevailed against plaintiffs lawyers. In two, Wal-Mart and Janus Capital, the Court turned away efforts to expand plaintiff litigation against corporate defendants, and in the third, AT&T Mobility, the Court created a potential opening for corporations to defend themselves against consumer litigation with binding arbitration. These cases were important victories for the business community, as were some others, but they are hardly representative of the Court’s business-related docket this past term, nor are they representative of the Court’s overall performance in business-related cases.

While business interests prevailed in the cases of concern to Senator Leahy, in other cases businesses took it on the chin. Janus Capital continued to read the private right of action under Section 10b-5 quite narrowly, but Matrixx Initiatives v. Siracusano and Erica John Fund v. Halliburton Co. green-lighted securities class-action suits the business community had hoped to stop, and in Smith v. Bayer rejected a corporation’s effort to preclude class actions in state court after prevailing against a class organized by different plaintiffs in federal court.  Thompson v. North Americna Stainless also expanded worker protection against retaliation for complaints of discrimination under Title VII in a way the business community feared.

In the preemption context, as we’ve seen in recent years, the Court did not establish a clear pattern.  Whereas the Court found federal legislation preempted state tort suits against makers of generic drugs and vaccines, it rejected preemption of suits against automakers for failing to install shoulder belts and, perhaps more significantly, turned away the business community’s arguments against an Arizona immigration law.  This case was particularly important to the business community because the law authorizes the revocation of business licenses — in effect, capital punishment for a business — for the hiring of illegal immigrants, and is likely to be replicated in other states.

In American Electric Power v. Connecticut, the Court found that the Clean Air Act displaces suits alleging greenhouse gas emissions constitute a public nuisance under federal common law, yet the business community won on the narrowest grounds possible. The Court failed to preclude such suits on standing grounds and expressly left open the possibility of continued litigation under state law. The Court’s displacement holding was clearly dictated by existing precedent and hardly makes up for the raft of regulation the business community faces as a consequence of Massachusetts v. EPA. For the business community, AEP was one step forward that came well after several steps back.

Analysts often look at the record of the U.S. Chamber of Commerce as a way to evaluate the Court’s orientation toward the business community, but this is an imperfect measure. The Chamber often files amicus briefs in cases of high importance to the business community, but at times it stays its hand, either because its membership is divided or it has determined limited resources are better spent in other cases — perhaps because the likelihood of winning a given case is too remote. As a consequence, focusing solely on cases in which the Chamber participates may produce an incomplete picture, overlooking cases such as Kasten v. Saint-Gobain Performance Plastics Corp., a Fair Labor Standards Act case in which the business community had a clear interest, but in which the Chamber did not file a brief and the business community did not prevail.

As I hope this post illustrates, the rush to characterize the Court as “pro” or “anti” business based on a handful of cases or even a single term inevitably results in sweeping conclusions that obscure more than they illuminate. While the business community may win more often than not, many of the victories are quite small.  This year, with the exception of At&T Mobility v. Concepcion, most of the business community’s victories came on narrow grounds and largely preserved the status quo. In this regard, the Court largely followed the general pattern of the past few terms. Similarly, the Court did not erect new barriers to plaintiffs’ suits so much as it refused to open new doors. The Court didn’t overturn precedent and move the law in a pro-business direction so much as it refused to move it in an anti-business direction, and so on. And where existing law or precedent did not lead the Court in a pro-business direction, it had no hesitation in reaching an anti-business result.

So is it fair to call the Roberts Court “pro-business”? Looking at the broader pattern of cases, there is little evidence that the Court, or any of the justices, are motivated by a desire to help business, as such. There have been too many Roberts Court decisions in which the business community lost big to support such a claim. But there are many justices on the Court who have doctrinal or jurisprudential commitments — such as a suspicion of policy-making through litigation — that often work to the business community’s advantage. It’s no coincidence that those justices least likely to open doors for plaintiffs’ attorneys in suits against business are also those who reject programmatic litigation against government agencies. As this terms First Amendment cases show, it’s not that the Court has a particular fondness for corporate speech, so much as it is a Court with a highly speech-protective majority. This results in wins for business when corporate speech is at issue, but it also works to the advantage of offensive protesters and non-corporate speakers. And where business can’t marshal arguments that appeal to the justices judicial philosophies, they are less likely to prevail. So rather than say this is a Court that is “pro-business,” I think it is a Court that business often likes — except when it doesn’t.