The second panel at the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests," featured political scientist J. Mitchell Pickerill of Washington State University, David Franklin of DePaul University of Law, and moderated by Tracy George of Vanderbilt Law School.
David Franklin opened with the by-now-common refrain that it is still early to reach any firm conclusions about the Roberts Court. That said, Franklin suggested that he believes it is fair to characterize the Roberts Court, thus far, is “business-friendly” – or, at least, “business-defendant-friendly.” His conclusions are based upon looking at the 38 cases during the Roberts Court in which the Chamber participated as an amicus or party at the merits stage. In 28 of these cases, approximately 73 percent, the side advocated by the Chamber was victorious. Also notable, among the 38 cases were 12 unanimous wins and 5 unanimous losses.
The win rate appears to have increased during the Roberts Court. Looking at the “natural Rehnquist Court” – the period from 1994-2005 during which there was no turnover on the Court – there were 76 cases in which the Chamber participated on the merits, but the Chamber had a lower winning rate of just over 60 percent. Thus, for whatever reason, the Chamber has been more successful before the Court in recent years.
Franklin noted that he Chamber is clearly an active participant before the Court, and becoming more so, and is the most active private litigant at the cert stage. Whereas many amicus briefs may be placeholders and basic signaling devices (such as when the existence of the brief is itself a signal, apart from its content), Franklin noted that the Chamber’s briefs tended to be quite legally substantive (and more so than he expected).
In seeking to explain the apparent pro-business sympathies of the Court, Franklin offered some tentative suggestions. First, he noted, the current justices are very “public-law oriented,” with relatively little collective experience on the private bar. Thus, the justices may approach business law cases based upon their experience as “public law” lawyers (judges, government officials, etc.). Among other things, this may result in a general distaste for the use of litigation as a regulatory tool. Thus, insofar as most justices may view state tort law as, primarily, a regulatory mechanism, it could explain many why many of the justices are sympathetic to some level of federal preemption (though, of course, viewing state tort law as a source of "regulatory" requirements with which companies must comply, does not, in itself, answer the preemption question).
Second, Franklin suggested that the Court, by-and-large, prefers clear rules to more flexible or malleable standards. This somewhat-formalist instinct (although resisted by Breyer) could lead the Court to support business concerns for predictability and stability in the law. And finally, he suspects that the justices are somewhat nationalist and have a slight preference for uniformity (perhaps particularly judicially imposed uniformity) over a potentially messy patchwork of state laws and regulations.
Mitch Pickerill also took a quantitative approach to the question of whether the Roberts Court is “pro-business.” His presentation included lots of data on slides, that I hope I am able to capture in this summary.
Going to back to the time of the Roberts and Alito nominations, Pickerill asked what we would have expected from each of these justices? Given their conservative political orientations, we may have expected each new justice to be “pro-business” insofar as this is reflective of a conservative orientation. This is, in fact, what the available data show. Comparing Roberts and Alito with Rehnquist and O’Connor in “union activity” and “economic activity” cases, Pickerill finds that Alito and Roberts are only marginally more “conservative” or “pro-business” in these areas (noting all the usual caveats about size of data set, labels, etc.). 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.
Pickerill suggested we might be able to get additional perspective on the potential trends in the Court by looking to regime theory, and a focus on political regimes and political time. From this perspective, Pickerill noted that it is perhaps important that the Democratic Party, and the Clinton Administration in particular, sought to neutralize certain issues that (in their view) favored the Republican Party, such as economic growth and crime. This led to certain policy priorities, such as deficit reduction and trade liberalization, as well as a downplaying of ideological considerations in the selection of Clinton judicial appointments. Thus, Clinton’s Supreme Court appointments, – Stephen Breyer and Ruth Bader Ginsburg – are judicial liberals on many issues, but also relatively “pro-business” compared to other possible nominees. Returning to the data, Pickerill noted that the Clinton Administration did not interrupt – and, in fact, actually contributed to – a longer term trend toward a pro-business orientation. Whether the Obama Administration will take a different approach -- and cause a "regime change" -- remains to be seen.
Taking her prerogative as moderator, Tracey George raised a few questions, including a) whether current economic woes will increase the salience of business cases on the Court, b) whether it is relevant to differentiate between “pro-business” decisions in which the Court upholds “pro-business” legislation and invalidates “anti-business” legislation, c) whether the shrinking docket should affect analyses of the Court, and d) whether the increased “professionalization” should affect analyses of the Court’s approach to business cases.
In response, Franklin suggested that few of the cases involve the question whether the Court should strike down or uphold a statute, but how a given statute should be interpreted, and thought it was too soon to know whether economic concerns will increase the salience of business cases in the courts. He also noted that whatever the effect of the professionalization of the judiciary, the increase professionalization of the Supreme Court bar is likely an important factor. On the issue of the docket size, Pickerill pointed out that quantitative examination of the trends has to be balanced with consideration of individual cases, as the doctrinal and practical cases of individual cases will vary.
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