Big Business and the Roberts Court - Panel I

This is the first in a series of semi-live bog posts on the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests." The morning opened with welcoming remarks from Santa Clara University School of Law Dean Donald Polden. After a warm welcome to the participants and attendees, Dean Polden suggested that in just a few short years the Roberts Court has worked significant changes in certain areas of law important to business. In antitrust, for instance, he suggested the Roberts Court has "dismantled" the architecture of the law through a series of pro-defendant decisions. What causes this? He speculated that there was several possibilities, ranging from the power of corporate money to fund high-powered litigation, the gradual "re-education" of judges and lawyers by the likes of the Olin Foundation, or perhaps just a general change in public opinion or elite consensus.

The first panel consisted of practitioners engaged in Supreme Court litigation: Robin Conrad of the National Chamber Litigation Center (the litigation arm of the U.S. Chamber of Commerce), Brian Wolfman of the Public Citizen Litigation Group, and Sri Srinivasan of O'Melveny & Myers. All three have been heavily involved in business-related cases before the High Court. My write-up of this panel is below.

John (mail):
I am puzzled by Wolfman's comment that decisions that might have been decided 5-4 before the appointment of Roberts and Alito might now be decided 7-2. This must assume that Roberts and Alito would vote in a manner opposite to how Rehnquist and O'Connor would have voted. I find this pretty hard to believe in the abstract. I don't know of any evidence that Rehnquist or O'Connor were more or less pro-business that Roberts and Alito. Did Wolfman cite any basis for his view?
1.23.2009 2:02pm
EnriqueArmijo (mail):
A data point that seems to be missing from this debate (at least in what I've read) is the percentage of business-related petitions for cert that are granted (as opposed to the actual number of business-related cases heard, which as Robin, Jonathan, and others have pointed out, can be attributed to a number of other factors). If the Court were acting consciously in ramping up its activity in favor of business (a conclusion which I doubt), it seems to me it would take a higher percentage of business cases in the last three terms than it had in the past -particularly in admin cases where agencies or public interest groups won below.

Granted, a higher cert grant percentage in business cases could be attributable to several other possible factors as well, such as practitioner specialization; Chamber participation in amicus briefing in support of cert; the Chief seeking to keep his word to the Judiciary Committee and therefore providing the fourth vote for cert in more cases; etc. But a Court consciously interested in moving the law in a certain direction would be more active in that area at the cert grant stage in looking for cases with which to, in the words of the good Dean, "dismantle the architecture of the law."
1.23.2009 2:30pm
anomdebus (mail):
Not only that but they had to have comprised half of the 5-4 dissent on an "anti-business" argument.
1.23.2009 3:28pm
The Santa Clara campus is located in a fairly dry climate, so I doubt that we will actually see any "bog posts" from this symposium.
1.23.2009 4:23pm
CDU (mail) (www):
A data point that seems to be missing from this debate (at least in what I've read) is the percentage of business-related petitions for cert that are granted

Jonathan talks about this a bit in his next post on the symposium.

Yet while the two justices have only a slightly more conservative orientation than their predecessors viewed individually, the outcomes of these sorts of cases appear to be significantly more "conservative" or "pro-business" on the Roberts Court than on prior Courts, including the Rehnquist Court, and the percentage of the Court's docket taken up by these cases appears to have increased as well. He also noted that within the set of business cases, the types of business cases considered has changed as well.
1.23.2009 4:26pm
einhverfr (mail) (www):

I think part of the issue is that Roberts is extremely skilled at building consensus in the court. I noted a large rise the size of majorities generally and a rise in the number of unanimous decisions.

You seem to be thinking that we put Supreme Court justices in place and then they will vote according to their views in a vacuum. However the fact is that a lot of discussion occurs and since Roberts places a lot of emphasis on unanimity, this leads to more discussion and seeking of common-ground.
1.23.2009 7:38pm

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