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Is It Accurate to Label the Roberts Court “Business Friendly”?

What makes the Roberts Court the Roberts Court, and the reason we are examining it as a distinct unit of analysis in this volume, is the departure and replacement of the chief justice in 2005, as well as several other associate justices since then. Therefore, an assessment of the judicial behavior on the Roberts Court in cases involving business interests should begin by asking how the Roberts Court has behaved in these types of cases relative to earlier Supreme Courts. In the following section, I examine the judicial behavior of the newest justices on the Court compared to the justices they replaced in decisions affecting business interests. I also examine the outcomes in those cases and compare the Roberts Court’s record to earlier periods in the Court’s history.

Economic and Union Activity Issues in the Roberts Court

In order to assess the behavior of the Roberts Court toward business interests, I analyzed data from the Database. The Database codes numerous variables for every Supreme Court decision from the beginning of the Vinson Court through the end of the 2012 term of the Roberts Court. Among the many variables included in the Database are the type of issue involved in the case; the attitudinal, or ideological, direction of each decision; and the direction of individual justice’s vote in each case. Votes in favor of business interests are coded as being in the “conservative” direction, and votes in favor of government regulation, unions, or labor interests are coded as being in the “liberal” direction.

I first selected cases that had been orally argued and decided on the merits that involved the issue areas of “union activity” and “economic activity.”[1] Union activity cases involve arbitration in the context of labor-management or employer- employee relations, union antitrust, closed shop litigation, the Fair Labor Standards Act, the Occupational Safety and Health Act, union membership disputes, and a host of other labor-management disputes. Economic activity cases include antitrust, mergers, bankruptcy, liability, punitive damages, the Employee Retirement Income Security Act, and a wide range of other government regulations of the economy and business activity. Votes in these cases are coded as

“conservative” for votes in favor of business interests and against government regulation or union authority, and conversely, they are coded as being in the “liberal” direction for votes in favor of government regulation of economic activity or union authority and against the interests of private businesses.[2]

Ifwe want to know what we should expect from the Roberts Court, and importantly whether or how it might differ from the Rehnquist Court, a logical starting point is to understand how the behavior of the newest justices differs from their predecessors, if at all. I examined the individual votes of Rehnquist and Roberts, O’Connor and Alito, Souter and Sotomayor, and Stevens and Kagan in these issue areas by computing the total number of votes in the conservative and liberal directions for each justice. As the results in Table 2.1 indicate, four justices have been more likely to vote in the conservative, or probusiness, direction in these cases, while four have been slightly more likely to vote against business interests.

Rehnquist and O’Connor each voted in the conservative, or probusiness direction in most of the decisions involving union activity and economic activity during their time on the Court. As the far right-hand column of Table 2.1 indicates, Rehnquist voted in the conservative direction in 502 of 870 decisions, or 58 percent of the time, while O’Connor voted in the conservative direction in 318 of 551 decisions, or 58 percent of the time, in cases involving union or economic activity. Roberts has voted in the conservative direction in 80 of 133 decisions, or 60 percent of the time, while Alito has voted in the conservative direction in 79 of 129 of these decisions, or 61 percent of the time; Roberts and Alito were only slightly more likely to vote in a probusiness direction than the justices they replaced. Unlike these four more conservative justices, Souter, Sotomayor, Stevens, and Kagan voted in the liberal direction, against business interests, a little more than half the time. Souter voted in the liberal direction in 177 of 341 decisions, or about 52 percent of the time, and Sotomayor voted

Table 2.1 Direction of Votes byjustices Rehnquist, O’Connor, Roberts, Alito,

Souter, and Sotomayor in Union and Economic Activity Cases

Justice

Union activity

Economic activity

Combined total

Conservative

Liberal

Conservative

Liberal

Conservative

Liberal

Rehnquist

85 (59%)

60 (41%)

417(58%)

308 (42%)

502 (58%)

368 (42%)

Roberts

7 (58%)

5 (42%)

73(60%)

48(40%)

80(60%)

53(40%)

O’Connor

51 (59%)

35 (41%)

267 (57%)

198 (43%)

318 (58%)

233 (42%)

Alito

7 (64%)

4 (36%)

72 (61%)

46(39%)

79(61%)

50(39%)

Souter

16(46%)

19 (54%)

148 (48%)

158 (52%)

164 (48%)

177 (52%)

Sotomayor

3 (38%)

5 (63%)

27 (47%)

30 (53%)

30 (46%)

35 (54%)

Stevens

47 (37%)

79 (63%)

292 (42%)

406 (58%)

339(41%)

485 (59%)

Kagan

1 (25%)

3 (75%)

20 (48%)

22 (52%)

21(46%)

25 (54%)

in the liberal direction in thirty-five of sixty-five decisions, or about 54 percent of the time. Similarly, Stevens voted in the liberal direction in 485 of 824, or 59 percent of the time, and Kagan voted in the liberal direction twenty-five of forty-six decisions, or about 54 percent of the time.

Given that the Roberts Court was initially delineated by the appointment of Roberts as chief justice in September 2005, and Alito’s nomination was confirmed a few months later in the same term in January 2006, Roberts and Alito have voted in fewer cases than Rehnquist and O’Connor. And Sotomayor and Kagan have cast even fewer votes. Thus, it is important to be cautious in drawing conclusions from their votes so far. While we must be cautious in making inferences, these data do constitute the population of cases in these issue areas through the end of the 2012 term; thus, we can at minimum draw some conclusions about the first seven years of the Roberts Court, including President Obama’s appointments to the Court. The analysis in this section indicates that Roberts and Alito were slightly more likely to vote in the conservative direction than the two justices they replaced, while Sotomayor was slightly more likely to vote in the liberal direction than the justice she replaced. Kagan voted in the liberal direction a little less than Justice Stevens whom she replaced, but she was still more likely to vote in the liberal rather than conservative direction.

Thus far, the data reveal the two new justices on the Roberts Court appointed by a Republican president have developed similar but modestly more conservative records in these cases compared to their predecessors, and the two new justices appointed by a Democratic president have mixed records compared to their predecessors. At first blush then, the ideological balance of the Court does not seem to have shifted much as a result of the membership changes. The next step of the inquiry is to ask how the membership change on the Court has affected outcomes in business-oriented cases.

To these ends, it is necessary to move from comparing the votes of individual justices on the Court to the outcomes of the Court’s decisions over time, with an eye toward comparing the outcomes in the Roberts Court to previous periods in recent history. Next, I examined the outcomes of decisions for union and economic activity cases. Table 2.2 reports the direction of these decisions for the Vinson, Warren, Burger, Rehnquist, and Roberts Courts. The results show that the Roberts Court’s decisions have resulted in a higher proportion of probusiness outcomes than previous periods, as demarcated by chief justice. While only 44 percent of Vinson Court decisions and 27 percent of the Warren Court decisions in union activity and economic activity cases were in the conservative, or probusiness, direction, the percentage increased in subsequent Courts, to 48 percent during the Burger Court, 54 percent in the Rehnquist Court, and finally, 62 percent in the Roberts Court. In the economic activity issue area alone, the Roberts Court has decided 62 percent of cases in the conservative direction, compared to 53 percent during the Rehnquist Court, 49 percent during the Burger Court, 26 percent during the Warren Court, and 41 percent during the Vinson Court.

Thus, although the evidence indicates that the individual behavior of Justices Roberts and Alito is only barely more probusiness than their predecessors and

Table 2.2 Direction of Supreme Court Outcomes in Union and Economic Activity Cases by ChiefJustice

Chief

Union activity

Economic activity

Combined total

Justice

Conservative

Liberal

Conservative

Liberal

Conservative

Liberal

Vinson

Court

23 (56%)

18 (44%)

93(41%)

132 (59%)

116 (44%)

150 (56%)

Warren

Court

42 (32%)

89 (68%)

128(26%)

364 (74%)

170 (27%)

453 (73%)

Burger

Court

48 (44%)

61 (56%)

219 (49%)

232(51%)

267(48%)

293 (52%)

Rehnquist

Court

31 (57%)

23 (43%)

183 (53%)

163 (47%)

214 (54%)

186 (47%)

Roberts

Court

7 (58%)

5 (42%)

78 (62%)

48 (38%)

55 (63%)

32 (37%)

TOTAL

151 (44%)

196 (57%)

702 (43%)

938 (57%)

853 (43%)

1,134 (57%)

Percentages may not add to one hundred due to rounding errors.

Table 2.3 Union and Economic Activity Cases as Proportion of Court Agenda

Chief Justice

Union activity (% of total)

Economic activity (% of total)

Vinson Court (N=786)

41 (5%)

225 (29%)

Warren Court (N=2189)

131(6%)

493 (23%)

Burger Court (N=2798)

109 (4%)

451(16%)

Rehnquist Court (N=2029)

54 (3%)

346(17%)

Roberts Court (N=651)

12 (2%)

126(19%)

TOTAL (N=8453)

347 (4%)

1641 (19%)

the two newest justices, Sotomayor and Kagan, are more likely to vote in the proregulation and prolabor directions, the Roberts Court as a whole appears to be more likely to vote in the conservative direction than the Court under the previous four chief justices.

It has been suggested by some commentators that the Roberts Court is also accepting more business cases.[3] Table 2.3 reports the total number of Supreme Court decisions and the proportion of those decisions that were union or economic activity cases by chief justice. As Table 2.3 indicates, the proportion of the Court’s docket involving union activity has been on the decline for decades, and the Roberts Court has followed suit, constituting less than 2 percent of its docket. Nineteen percent of the Roberts Court decisions have been in the economic activity issue area, which is only slightly up from 17 and 16 percent in the Rehnquist and Burger Courts, respectively, but is still less than the Warren and Vinson Courts, at 23 and 29 percent, respectively.

  • [1] The union activity issue area includes, among other issues, cases involving the Fair LaborStandards Act, the Occupational Safety and Health Act, and a range of labor-management disputes.The economic activity code includes a wide range of economic regulations, and includes antitrust,bankruptcy, mergers, patents, the Employment Retirement Income Security Act, and liability andpunitive damages.
  • [2] The Supreme Court Database is not without its detractors, especially with respect to the coding oflegal provisions involved in Supreme Court cases. See, e.g., Carolyn Shapiro, Coding Complexity: BringingLaw to the Empirical Analysis of the Supreme Court, 60 Hastings L.J. 477 (2009). While I agree withsome of the criticisms of the way law is treated (and sometimes ignored) in the Database, it remainsa useful tool for analyzing general trends in Supreme Court outcomes in broad issue areas. It is possible,indeed probable, that the issue areas of economic and union activity are both underinclusive and overinclusive (i.e., they may not include every case the Court has ever decided with business implications, andthey may include some cases that do not directly implicate pro- or antibusiness legal analysis). However,given that much of the commentary—by both Court supporters and Court detractors—on the relationship between the Roberts Court and (big) business is indeed based on outcomes, analysis of thoseoutcomes at an aggregate level is appropriate and useful in a volume such this one. Here, the Databaseis especially useful because it codes the Supreme Court outcomes in a consistent manner over time. AsI discuss in the conclusion of this chapter, it is almost certainly true that not all cases analyzed here areequally as important as one another, and that interpretive analysis is necessary to tease out which, if any, ofthe Roberts Court decisions are likely to have significant implications for future doctrinal development.
  • [3] Jeffrey Rosen, Supreme Court Inc., N.Y. Times Mag., March 16, 2008, at 38.
 
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