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A Qualitative Assessment
The foregoing highlights that in evaluating claims that the Roberts Court is probusiness it is also important to ask “compared to what?” Depending upon one’s baseline, the claim that a court is probusiness can mean a number of quite different things. There is a difference between eliminating a long-standing cause of action against business defendants and refusing to open the door to a new generation of suits against corporations. Both are, in a sense, probusiness, but they are quite distinct. Similarly, reversing an outlier proplaintiff decision from the Ninth Circuit is not the same as overturning decades of settled law to benefit defendants, yet a pure quantitative analysis focusing on prevailing parties could conflate the two. Unless one assumes that the Court’s cases in any given area represent a random sample of the available cases (which is unlikely), any analysis must account for the merits of the underlying cases.
Since John Roberts was confirmed as the seventeenth ChiefJustice in 2005, the Court has handed the business community its share of victories, but it has also handed business groups substantial losses. While raising the formal bar for filing many lawsuits, upholding broad arbitration clauses, and rejecting new avenues of class-action litigation against large corporations, the Court has also refused to preempt litigation against drug makers or block state immigration laws penalizing businesses that hire undocumented workers, and it unleashed the federal regulation of greenhouse gases by the US Environmental Protection Agency. These are hardly outcomes favored by big business.
Evaluating whether this is a probusiness record requires more careful analysis than simply tallying the cases or looking to see whether a business group was involved. It is necessary to step beyond the easy label and think carefully about what it means to say a court is probusiness and unpack the consequences such an orientation may have. Quantitative analyses have their place, but a complete picture requires careful qualitative assessments as well.
One limitation of some empirical studies of the Supreme Court is the failure to compare the success of business groups with that of other players, such as the federal government. In Chapter 1, BradleyJoondeph provides an empirical analysis of the Roberts Court’s decisions in business-related cases exploring whether there is an identifiable probusiness trend, controlling for other potential influences, such as participation of the Solicitor General. While business groups seem to do well before the justices, the question is: compared to what? As Joondeph notes, the Solicitor General performs well before the Supreme Court too, and the Solicitor General and business groups are often on the same side. The US
Chamber of Commerce has a winning record in the High Court, as one might expect of any high-powered, repeat litigant, but the advantage does not appear to be all that great, at least not across the board.
Any empirical evaluation of the Supreme Court’s general tendencies must account for baselines in the law, as well as in judicial behavior. In Chapter 2, political scientist J. Mitchell Pickerill points out that when asking whether the Roberts Court is probusiness we must also consider what we would expect from this, or any court. Republican presidents nominated a majority of the Roberts Court to date, and the Republican Party is, on the whole, seen as more sympathetic to business interests than is the Democratic Party. For this reason, one would expect the court to be somewhat more sympathetic to many sorts of business claims than a court with a majority of justices appointed by Democratic presidents would be. Insofar as the Roberts Court is probusiness, in the ways discussed in the preceding text, this may be an inevitable result of the political process. As has often been said, the Supreme Court follows the election returns.
External factors may affect how the Supreme Court approaches individual cases, and it may even affect what cases the Court agrees to accept. In Chapter 3 Richard Lazarus documents the effect of the emergence of an elite Supreme Court bar on case selection and outcomes at the Supreme Court, including the recent increase in business-related cases. The Court grants the petitions filed by the expert members of the bar at a significantly higher rate and these experts also prevail on the merits more frequently. Insofar as the business interests who serve as the bar’s primary clients are enjoying heightened success before the Court, this is partially a result of the increased specialization within and effectiveness of the Supreme Court Bar.
Few areas of law are more important to large corporations than securities law. In Chapter 4, Adam Pritchard concludes there is little evidence of a probusiness bias here. Indeed, Pritchard suggests there is little evidence the Supreme Court cares much about securities law at all. While the first several years of the Roberts Court saw an increase in the number of securities law cases, Pritchard finds nothing in the Court’s opinions suggesting that the justices are all that interested in the substance of the securities laws or the policies that animate them. Instead, securities law serves as a backdrop for debates over statutory interpretation, the use of legislative history, and the relationship of the judiciary to the administrative state.
If the Roberts Court is not particularly interested in securities law, as such, it does appear to be interested in curbing what some see as excessive litigation—or at least reducing the costs of litigation on defendants. While not always seen as “business” cases, the Twombly and Iqbal decisions are among the most important decisions for business litigants yet issued by the Roberts Court, because they set the federal pleading standards needed to survive a motion to dismiss and gain access to discovery from defendants. Contrary to the prevailing wisdom, however, Brian Fitzpatrick argues in Chapter 5 that these decisions have not radically and unduly altered the rules of civil litigation through judicial fiat so much as they have updated federal pleading rules to account for technological and other changes that increase the costs of litigation. Yet even if not a radical change, these decisions suggest the Court is sensitive to the costs of litigation for corporate defendants, including the costs of discovery.
A concern for the costs of litigation may also be found in the Roberts Court’s antitrust jurisprudence, which builds upon the Chicago-influenced antitrust jurisprudence of the past few decades. As Thom Lambert argues in Chapter 6, the Court has shown a greater willingness to use antitrust to police horizontal restraints of trade than vertical restraints or unilateral conduct. It has also insisted that antitrust should police only anticompetitive harm, which does not include mere price discrimination. This is all consistent with the dominant Chicago view of antitrust. At the same time, the Court has pulled away from some of Chicago’s more extreme views, acknowledging that various practices that were fully acquitted by the Chicago School may injure consumers and cause anticompetitive harm. The common thread running through the Court’s decisions and ultimately pulling its holdings in the direction of Chicago is a concern about error costs—a desire to minimize the sum of social losses from false positives and false negatives.
The Court has not been nearly as consistent in the context of federal preemption, or so it may at first appear. After a streak of propreemption decisions in 2007 and 2008, the Roberts Court delivered three strong antipreemption decisions in the following term, challenging the idea that the Court would automatically defend business from disuniform state laws. According to Roderick Hills in Chapter 7, preemption decisions force the Court’s conservative majority to confront an internal conflict within modern American conservatism— namely, the tension between suspicion of bureaucratic expertise and suspicion of anticorporate populism. The tension between these strands of conservatism might explain the Court’s unsteady path on preemption decisions better than any claims of a probusiness bias.
No case concerning corporations has attracted more attention or prompted more debate than Citizens United v. Federal Election Commission.43 This case, above all others, is pointed to as Exhibit A when analysts charge the Roberts Court with a probusiness bias, even if large, for-profit corporations are not particularly large sources of campaign contributions. In Chapter 8, Joel Gora challenges this narrative, suggesting that Citizens United is best understood as a case about speech, rather than a case about corporations. Viewed in the context of the Roberts Court’s relatively expansive First Amendment jurisprudence, the decision is not much of an outlier or a surprise.
Labor and employment law evinces a pattern of relative hostility to litigation-driven policy making—a hostility seen in other legal areas such as securities law. As Matthew Bodie observes in Chapter 9, the rise of human resources departments parallels the increase in workplace governance through myriad statutory and regulatory requirements. The Supreme Court’s decisions in labor and employment law cases are largely monitored and implemented at the private level by these inter- and intrafirm bureaucracies. In its shaping of labor and employment law, the Roberts Court reflects a willingness to delegate greater powers of implementation to these private institutional players. This delegation is highlighted in cases involving antidiscrimination protections, the Employee Retirement Income Security Act, and arbitration.
Environmental law reveals a slightly similar pattern. Quantitatively, business interests prevail more often than not when environmental law questions are before the Supreme Court. As a qualitative matter, however, the Roberts Court has not offered the business community much relief from the cost or scope of environmental regulation. As I discuss in Chapter 10, the federal government prevails in environmental law cases just about as often as business groups do, and some cases (such as Massachusetts v. EPA) have unleashed substantial regulatory initiatives. While not overtly hostile to environmental regulation, the justices are hesitant to expand corporate liability for environmental harms or green light new avenues of litigation. This is consistent with the Court’s revealed pattern in other contexts. A few cases also suggest some justices have a soft spot for small landowners, if not for larger regulated firms.
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