Symposium on "Big Business and the Roberts Court":
Tomorrow I will be participating in the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests." Jeffrey Rosen, whose NYT magazine article "Supreme Court, Inc." no doubt helped inspire the conference, will deliver the keynote address tomorrow afternoon. (We discussed Rosen's article on the VC here.) Additional speakers include litigators and academics including Tracey George (Vanderbilt), Pam Karlan (Stanford), and Vikram Amar (UC Davis), among others.
In my remarks I will raise questions about what it means to say that the Roberts Court is substantively "pro-business," and take a closer look at the various environmental cases decided by the Roberts Court. If the Court is meaningfully pro-business, one might expect that the Court would be hostile to environmental regulation or at least sympathetic to business challenges to regulatory measures. Yet no such tendency is visible in the environmental decisions rendered by the Roberts Court thus far. If there is evidence that the Roberts Court is "pro-business," the evidence must be found elsewhere.
I addressed the broader claim that the Roberts Court is pro-business in Part III of my response to Erwin Chemerinsky's article on the first three years of the Roberts Court. Chemerinsky argued that the Roberts Court has shown itself to be particularly pro-business, and here is a portion of my response.
Dean Chemerinsky is likely correct that, in important respects, the Roberts Court could be seen as “pro-business.” But this is not because the Court has been particularly aggressive in striking down government regulation or erecting constitutional barriers to economic regulation. This is no pre-New Deal Court. Nor is the Court’s apparent solicitude for business concerns particularly rigid or ideological. To the contrary, the results in most business law cases are quite lopsided, and rarely the result of an ideological division on the Court. In this area, 5-4 cases are the exception, not the rule. . . .
Business-related cases appear to occupy a major share of the Roberts Court’s shrunken docket – over one-third of the cases accepted and argued in each of the past three terms. It also appears that business advocates have had a relatively successful run of late. In OT 2006, for example, the litigation arm of the U.S. Chamber of Commerce filed briefs in fifteen cases, winning thirteen. This may be evidence that the business community has tremendous influence on the Court. Or it may indicate that its attorneys are particularly good at picking winners and marshaling the organization’s resources for those cases in which it can have the greatest impact.
Some call the Court “pro-business” because there is no crusading liberal or “progressive” justice on the Court. There is no justice ready to follow William O. Douglas’ counsel to “bend the law in favor of the environment and against the corporations.” But this, in itself, does not make the Court pro-business, particularly as there are no justices on the Court ready to do the opposite. Rather, most justices appear to approach the majority of business law cases as legal questions deserving of careful legal analysis and resolution in accordance with the dictates of law. With the exception of the punitive damages cases, the Court’s business docket focuses on statutory matters in which Congress retains the upper hand. Most cases require the Court to interpret or apply and enforce legislative accommodations, and leave Congress ample room to correct course. . . .
To the extent the Roberts Court is pro-business, it is so not because it has embraced an aggressive agenda to impose constitutional constraints on the government’s power to regulate economic activity or to rewrite the law to favor business interests. . . . Rather, the Roberts Court can be called pro-business insofar as it is sympathetic to some basic business oriented legal claims, reads statutes narrowly, resists finding implied causes of action, has adopted a skeptical view of antitrust complaints, and does not place its finger on the scales to assist non-business litigants.
I look forward to tomorrow's conference and (time-permitting) hope to blog some highlights.
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.
First up was Robin Conrad who set out to “debunk” the “emerging popular myth of the pro-business bias” of the Roberts Court. Conrad said she has seen “no convincing evidence” that the Roberts Court is “biased” in favor of business, at the expense of fairness or other concerns. She did, however, note the possibility that the Court shares some basic legal values supported by the business community, including uniformity and notice in the legal and regulatory context.
According to Conrad, the fact that court is taking more business cases is not evidence that the Court is “pro-business.” The trend could be an artifact of the Court’s “incredibly shrinking docket,” in which business cases appear to take up a larger share of the Court’s work. This could also be due to the Chief Justice’s expressed interest in unanimity, and a recognition that business cases may be less polarizing or divisive than other types of cases. It could also be “long-overdue course correction” that is making up for the Rehnquist Court’s relative disinterest in business cases.
Turning to the substance of the cases, Conrad noted that in some areas the Court may be more sympathetic to business concerns, but that this could also reflect the Court’s recognition of certain problems, such as the perceived failings of the state tort system. More broadly, while the Chamber has had some success, but this has not been consistent. As noted in the press, the position supported by the Chamber won in 13 of 15 cases in which the Chamber participated in OT06, but only 8 of 15 cases in OT07. She also noted that some cases are more significant than others and that it is hard to reconcile some high-profile business losses, such as Massachusetts v. EPA, with the idea that the Roberts Court is meaningfully “pro-business.” Further, she rejected the idea that the Court is “pro-business” because it has become more conservative, noting that in the vast majority of theses cases have been decided by over-whelming majorities, a bare majority unanimously.
Brian Wolfman expressed the general view that it is “too early to tell” whether there is a pro-business slant. “You need more time and you need more data,” adding it is also important to take into account the role of the government in such cases. Responding to Conrad, Wolfman suggested that a 7-2 or even 8-1 split does not indicate the lack of ideological division. With new justices on the Court, Wolfman suggested, cases that would have been decided 5-4 cases before could now be decided 7-2. He also noted that an important consideration will be how Congress responds to the Court’s business-oriented statutory decisions, and how the Court responds to Congressional corrections, such as the expected passage of a bill to overturn the Ledbetter pay discrimination case.
Wolfman focused the balance of his remarks on preemption, and the reasons he believes congressional preemption of state tort-law remedies is bad public policy. As an initial matter, Wolfman rejected the idea that there is a problem when federal regulatory measures and state tort law overlap, and noted that the Supreme Court has been anything but consistent in its handling of this issue. He challenged the idea that state tort law is equivalent to positive regulation, thereby challenging the idea that federal regulatory standards necessarily conflict with state tort law judgments concerning similar issues. While Congress has considered substantial tort reform, Wolfman rejected the idea that Congress was engaged in implicit tort reform when it enacted various federal regulatory statutes.
Wolfman focused the balance of his remarks on preemption, and the reasons he believes congressional preemption of state tort-law remedies is bad public policy. As an initial matter, Wolfman rejected the idea that there is a problem when federal regulatory measures and state tort law overlap, and noted that the Supreme Court has been anything but consistent in its handling of this issue. He challenged the idea that state tort law is equivalent to positive regulation, and the idea that federal regulatory standards necessarily conflict with state tort law judgments concerning similar issues. While Congress has considered substantial tort reform, Wolfman rejected the idea that Congress was engaged in implicit tort reform when it enacted various federal regulatory statutes. Among other things, he argued that regulatory agencies and the tort system operate in very different ways. Regulatory agencies can impose ex ante restrictions, require information disclosure, and demand immediate corporate responses to emergencies (such as the need to recall contaminated or dangerous products). To the extent that the tort system has a regulatory effect, Wolfman argued, it does so only after many lawsuits and court judgments.
While the tort system and regulatory system may overlap and interact, Wolfman argued the tort system is not a substitute for regulation, nor should the existence of regulation preclude recovery by injured consumers. Indeed, it may be socially optimal for the regulatory system to allow useful products to remain on the market, while still using the tort system to compensate those injured by such products. While the tort system will exert some regulatory pressure, this is a good thing Wolfman argued, noting many products that escaped regulation from a “broken” system, and were later subject to product liability suits. In sum, Wolfman argued that state tort law cannot replace, and should not be displaced by, federal regulation, particularly when Congress has not explicitly expressed its intent to preempt state tort law.
Sri Srinivasan echoed the prior panelists concerns about reaching premature conclusions about the Roberts Court. That said, he offered some perspective on the Chamber of Commerce’s win-loss rates. While acknowledging that the Chamber of Commerce’s participation in a case is a useful proxy for business interest in a case, it is not a perfect proxy. With that qualification, he noted that the Chamber has won approximately two-thirds of the cases in which it has participated as an amicus in the Robets Court. Yet, he noted, the Court appears to be more “pro-government” than “pro-business.”
Looking at which 26 cases during the Roberts Court in which both the federal government (through the Solicitor General’s office) and the Chamber participated as amici, the Chamber does not appear to have all that great of an influence on the Court's decision-making. In the 15 of the 26 cases in which the Chamber and the SG were on the same side, the Chamber won all 15 cases. In the 11 of the 26 in which the Chamber and the SG disagreed, however, the government won and the Chamber lost. Of potential significance, most of these cases (9 of 11) involved employment or ERISA issues. This data would suggest that the SG’s office is more influential than the Chamber, at least in cases where the SG participated as an amicus. [Note: What this data excludes, however, are cases involving direct challenges to government decisions, such as challenges to regulatory agencies.]
The apparent influence of the SG’s office could be particularly important going forward Srinivasan suggested, as many would expect the SG’s office under President Obama to be less hospitable to business interests than has been the SG’s office during the Bush Administration. If so, this would help illuminate the extent to which the Roberts Court has, in fact, been “pro-business.”
Big Business and the Roberts Court - Panel II:
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.
Big Business and the Roberts Court - Panel III:
The third panel at the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests," featured Vikram Amar (UC Davis), Pam Karlan (Stanford) and yours truly.
Vikram Amar spoke on the implication of changing Court personnel on the Court’s doctrine in the dormant commerce clause and punitive damages context. Thus far, Amar noted, Justices Scalia and Thomas have been unable to woo the Chief Justice and Justice Alito to adopt their methodological originalism in these areas. This not only has implications for business but also, Amar suggested, but perhaps also on the continued viability of originalism as an interpretive methodology.
On punitive damages, Amar notes, the Court does not split along traditional ideological lines, with Justice Breyer (rather than Justice Kennedy) playing the pivotal role. In the Philip Morris case, for instance, Justice Breyer wrote the majority for Justices Kennedy, Alito, Souter and the Chief Justice, whereas Justices Stevens, Ginsburg, Scalia and Thomas dissented, Thomas on the explicit grounds that the Court had no business limiting punitive damages on substantive due process grounds. Justice Thomas and Scalia reject any constitutional limitation on punitive damages, though both were willing to support limits on punitive damages under maritime law in the Exxon Shipping v. Baker, where Congress retains the ability to impose a different rule.
Turning to the dormant commerce clause, Amar noted that Scalia and Thomas (and particularly the latter) take a similarly absolutist view, rejecting the idea that the dormant commerce clause has any textual basis. Justice Scalia is willing to strike down some truly discriminatory measures on stare decisis grounds, but Justice Thomas has said he will not enforce the clause at all. Though the Chief Justice and Justice Alito have differed on application of the dormant commerce clause, neither has shown any inclination to join the Scalia-Thomas originalist position.
In both areas, it may appear that Scalia and Thomas are opposing the constitutionalization of particular rules without textual basis. Yet, Amar noted, the dormant commerce clause operates as a default rule, subject to legislative revision. Just as Congress can alter the limit on punitive damages in maritime law, Congress can authorize state measures that would otherwise violate the dormant commerce clause. Moreover, Amar observed, there is well-over one-hundred years of precedent on the dormant commerce clause upon which Congress has relied in deciding when and whether to authorize state measures that could inhibit interstate commerce. If Scalia and Thomas were truly concerned about preserving Congress’ role, Amar suggested, their strict originalist approach is misplaced.
Pam Karlan sought to compare Caperton v. A.T. Massey Coal Co. with Exxon Shipping v. Baker, two cases involving large punitive damage awards against corporate defendants. In Caperton, a corporate CEO spent approximately $3 million to unseat a pro-plaintiff state supreme court justice in West Virginia so as to secure a favorable verdict in a punitive damages case. The justice who won refused to recuse, and cast the deciding vote in Massey Coal’s favor. Later this term the Court will consider whether this failure violated Caperton’s due process rights.
The efforts Of Massey Coal’s CEO, Blankenship, to buy a favorable court result, Karlan suggested, are similar to the campaign by Exxon to influence the outcome of its litigation efforts by funding academic research raising questions about the reliability and fairness of large punitive damage awards. Such efforts, she suggested, were an equivalent effort to alter the course of litigation, and influence not only a specific case (Exxon’s eventual appeal to the Supreme Court) but how lower courts address similar issues going forward.
Why did Exxon feel the need to fund these studies, Karlan wondered. It must be because otherwise the studies would not have been written (or at least not when they were). This could be because some sorts of studies, such as those involving hiring mock jurors, are sufficiently expensive that they would not otherwise occur. Another possibility is that Exxon’s funding alters the research queue of the experts receiving Exxon funds. If so, Karlan wondered whether this is unethical for academics, for what are our universities paying us for if not (among other things) our independent judgment about what subjects are worthy of academic investigation. [What does that say about symposia like this one? This invitation certainly altered my research queue – alas, there was no massive check attached.]
Interestingly enough, Justice Souter’s majority opinion in Exxon Shipping noted Exxon’s funding of academic research on the consistency and variability of punitive damages awards, in footnote 17, and explicitly disclaimed any reliance those studies. Why did the Court do this? One possibility, Karlan suggested, was because Exxon was a party to the case. But would this mean that the same studies could be considered in another case raising similar issues? Or would the Exxon funding be similarly disqualifying?
Karlan said she did not believe Exxon’s efforts to “seed” the academic research so as to improve its case rise to the level of a due process violation. The Caperton case, on the other hand, raises a more serious due process issue that could require the Court to adopt a legislative-type rule to prevent this sort of abuse and govern potential conflicts-of-interest in state courts going forward. If Blankenship’s actions create a due process problem, the Court will have little choice but to develop a series of legislative-type rules about what is or is not required when parties before elected state courts have contributed to campaigns or election efforts.
I’ll add a post summarizing my remarks later today or tomorrow.
Jeffrey Rosen's Keynote at "Big Business and the Roberts Court":
Jeffrey Rosen delivered the keynote address at the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests," which is only appropriate as the conference theme was inspired by his NYT magazine article “Supreme Court, Inc.”
Rosen began noting “Supreme Court, Inc.,” as something of a follow-up to his much discussed article “The Unregulated Offensive,” in which he discussed the alleged “Constitution in Exile” movement (about which we blogged extensively). Both articles were about right-of-center efforts to alter the course of the law. Whereas he once saw these articles as of a piece with each other, he said he now sees that there are larger fissures between the two than he had once appreciated. On the right of the court and in the legal community, Rosen suggested, there is a split between Chamber of Commerce conservatives and libertarian-originalist-states-rights conservatives. The former seek to advance business interests through litigation relying upon statutory arguments, whereas the other has a far more ambitious agenda to limit the size and scope of government on constitutional grounds. Both have market sympathies, but only the former appears to have been at all successful before the Supreme Court.
Rosen took issue with the claim that the lopsided margins in most business cases are evidence of a lack of ideology on the Court. The real lesson of those cases, and the 9-0, 8-1, or 7-2 votes in so many business cases, is that there is a broad ideological consensus on the Court in support of pro-market or pro-business outcomes in most business cases. Yet as Rosen also noted in his talk, insofar as most business-oriented cases involve statutory questions, the focus on statutory text creates the potential for consensus in a given case as justices’ prior ideological or doctrinal commitments. By deferring to Congress and the legislative text, the Court can side step potentially more divisive policy or ideological splits.
Rosen believes the business-oriented conservatives have been largely successful in their legal efforts but there are some notable exceptions. Where the Chamber conservatives have lost – environmental, employment and labor cases – Rosen suggested it is because they have come up against other strong interests and ideological commitments among the justices. So, while most justices may have strong market sympathies, these inclinations may be overridden when they come up against other values (e.g., equality, racial justice, environmental protection) that are more strongly held by at least some of the justices.
Where the Chamber conservatives have been largely successful, the more ideological libertarian-originalist types have seen their efforts bear less fruit on the Supreme Court. While conservative libertarian-oriented public interest legal groups have won some important legal victories, such as on racial preferences, school vouches and interstate wine shipments, the broader project to constrain (if not dismantle) the post-New Deal regulatory state. Their stronger ideological prescriptions got few takers.
Rosen noted the somewhat-famous 1984 debate between then-Professor Antonin Scalia and Professor Richard Epstein on whether courts should aggressively protect economic liberties and constrain federal power. Such efforts would be Lochnerian, Scalia suggested, and he wanted no part of it, whereas Epstein explicitly called fro some measure of “judicial activism” to vindicate a more originalist limited government vision of the Constitution. While Epstein’s libertarian vision was appealing to some – and may have a follower in Justice Thomas – other conservative justices are firmly in Scalia’s camp.
These divisions remain on the right, Rosen noted, but suggested little reason why the libertarian-originalist forces would face more success going forward. Some activists have announced plans to mount constitutional challenges to the federal bailout, but these are unlikely to succeed. So it is likely that, at least until the Court changes dramatically, that the Chamber conservatives will continues to succeed, and the libertarian-originalists to fail. President Obama’s SG, Elena Kagan, may help guide the Court in a less business-friendly direction, though Rosen thought this unlikely. While President Obama could alter the Court's composition, Rosen also thought it unclear whether Obama would nominate a Douglas-style economic populist. Most likely nominees seem to come from the same dominant legal culture that appears in line with the moderately pro-business consensus. Hope for a more populist, less business-friendly justice would have to come from a broader change in the national culture, particularly among legal elites.
Throughout the talk Rosen suggested that the Court has a general market-oriented consensus, which is illustrated by its hostility to "regulation-by-litigation." I would suggest that these are not the same thing. I think Rosen is correct that, as a general matter, the Court has shown a hostility to regulation-by-litigation, and ruled in favor of business in most such cases, but the Court has shown no hostility to regulation, as such, and is not more broadly pro-market. This might explain the Court's deference to the government, and the high rate of business victories in cases in which the SG participates, as well as the failure of plaintiffs who have sought to expand causes of action or use courts as a regulatory tool. So perhaps the Court is not pro-business, as much as it is hostile to regulation-by-litigation.