Introduction In Search of the Probusiness Court

JONATHAN H. ADLER

The Supreme Court’s 2012-2013 term was good for business. The Court made it more difficult to bring class-action suits against large corporations,[1] limited employers’ liability for potentially discriminatory actions taken by their em- ployees,[2] and blocked suits against US corporations alleging human-rights abuses overseas.[3] It was enough for Bloomberg Businessweek to name the justices “Corporate America’s Employees of the Month."[4] While not every case went business’s way,[5] it was a term in which the Supreme Court came “to the defense of business,” according to the Wall Street Journal.[6]

This was not the first time the Supreme Court had been accused of “probusiness” sympathies since John Roberts was confirmed as ChiefJustice in 2005. Such charges had been made before.[7] A widely cited 2008 article in the New York Times’ Sunday magazine by Jeffrey Rosen, “Supreme Court, Inc.,” affixed the “probusiness” label to the Roberts Court, and it has stuck ever since.[8] Since then, numerous articles and media outlets have repeated the charge,[9] as have prominent academics[10] and political figures.[11] The Roberts Court, it has been said, is “open for business"[12]

Not every term has conformed to the Roberts-Court-as-pro-business narrative, however. Business interests suffered several significant losses during the Court’s 2013-2014 term, prompting Reuters to report that the Court had “buck[ed]” the “pro-business trend"[13] Even where business interests managed to prevail, their victories were quite narrow, and fell far short of what they had sought.[14] Again, we had seen this before. In 2009, for instance, the Roberts Court also “defie[d]” its “pro-business label” by, among other things, green-lighting state-law tort suits against pharmaceutical manufacturers.[15]

The probusiness charge is repeated time and again. Repeated too is the surprise when the Court does not hew to the Roberts-Court-as-friend-of-business narrative. After the Court’s 2007 decision in Ledbetter v. Goodyear Tire and Rubber Co.,[16] many were ready to claim the Court favors business employers over employees. Yet the Court has sided with employees repeatedly in other employment cases, including several involving claims of unlawful retaliation.[17] Generalizations about the Court’s approach to employment discrimination based upon its Ledbetter decision were premature and inaccurate. As one prominent Court critic acknowledged, the Chamber of Commerce “has had more losses than wins in the employment discrimination domain.”[18]

The rush to affix labels to the Court results in the generation of overly simplistic narratives. This problem is particularly acute in the end-of-term summaries published each summer as the Court concludes its work. A single term— let alone a single case—can only reveal so much about the Court’s overall orientation. The Court typically hears fewer than eighty cases a term—less than half the number of cases it heard just a few decades ago.[19] As a consequence, a given term’s selection of cases rarely presents a representative sample of the types of cases and controversies that confront the federal courts. A court that looks particularly conservative or business friendly one term may look quite liberal or hostile to business the next.

Determining whether the Roberts Court is probusiness, in any meaningful way, requires taking a longer view, considering not just the high-profile cases that generate headlines or even the results of a single term. It requires looking at the Court’s work of multiple years and considering the effect that the Court’s decisions, alone and in combination, have on the law of the nation. Concluding that the Court’s body of work merits a specific label, whether “probusiness” or “proconsumer,” “liberal” or “conservative,” “activist” or “minimalist,” also requires defining the terms. Further, it must be remembered that the Roberts Court is still a work in progress, as the Court’s personnel and the positions of individual justices will change over time. Any conclusory assessment about the Court may come with an expiration date.

  • [1] Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013); American Express Co. v. Italian ColorsRest., 133 S. Ct. 2304 (2013).
  • [2] Vance v. Ball State Univ., 133 S. Ct. 2434 (2013).
  • [3] Kiobel v. Royal Dutch Petrol. Co., 133 S. Ct. 1659 (2013).
  • [4] See Paul M. Barrett, The Supreme Court: Corporate America's Employees of the Month, BloombergBusinessweek, June 27, 2013, available at http://www.bloomberg.com/bw/articles/2013-06-27/the-supreme-court-corporate-americas-employees-of-the-month (last accessed February 17, 2016).
  • [5] See, e.g., Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013); Oxford HealthPlans LLC v. Sutter, 133 S. Ct. 2064 (2013).
  • [6] Brent Kendall, Supreme Court Comes to Defense of Business, Wall St. J., June 23, 2013.
  • [7] See, e.g., Adam Liptak, The Roberts Court: Justices Offer Receptive Ear to Business Interests, N.Y.Times, December 19, 2010, at A1.
  • [8] Jeffrey Rosen, Supreme Court, Inc., N.Y. Times Mag., March 16, 2008.
  • [9] See, e.g., Robert Barnes & Carrie Johnson, Pro-Business Decision Hews to Pattern of Roberts Court,Wash. Post, June 22, 2007, at D1; Nick Timiraos, Roberts Court Unites on Business, Wall St. J., June30, 2007 (“The first full term of the Roberts Court ended this past week with rulings that pushed thelaw in a direction favored by business.”); Steven Pearlstein, Business Reigns Supreme, Wash. Post, July1, 2007; Tony Mauro, High Court Reveals a Mind for Business, Legal Times, July 2, 2007.
  • [10] See, e.g., Erwin Chemerinsky, The Roberts Court at Age Three, 54 Wayne L. Rev. 947, 962(2008) (“[T]he Roberts Court is the most pro-business Court of any since the mid-1930s.”).
  • [11] Senator Elizabeth Warren, Speech to the American Constitutional Society: The Corporate Captureof the Federal Courts, June 13, 2013; Senator Sheldon Whitehouse, Conservative Judicial Activism: ThePoliticization of the Supreme Court under Chief Justice Roberts, 9 Harv. L. & Pol’y Rev. 195 (2015).
  • [12] Michael Orey, The Supreme Court: Open for Business, Bloomberg Business, July 8, 2007.
  • [13] Lawrence Hurley, U.S. High Court Bucks Pro-Business Trend This Term, Reuters, June 25,2014, available at http://www.reuters.com/article/2014/06/25/us-usa-court-business-insight-idUSKBN0F00CK20140625 (last accessed February 17, 2016).
  • [14] See, e.g., Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398 (2014); Util. Air RegulatoryGrp. v. EPA, 134 S. Ct. 2427 (2014).
  • [15] See Robert Barnes, Court Defies Pro-Business Label, Wash. Post, March 8, 2009.
  • [16] 550 U.S. 618 (2007).
  • [17] See, e.g., Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006); CBOCSWest Inc. v. Humphries, 553 U.S. 442 (2008); Gomez-Perez v. Potter, 553 U.S. 474 (2008); Meacham v.Knolls Atomic Power Lab., 554 U.S. 84 (2008); Crawford v. Metro. Gov’t of Nashville & DavidsonCnty., 555 U.S. 271 (2009).
  • [18] David L. Franklin, Why Does Business (Usually) Win in the Roberts Court? American ConstitutionSociety Issue Brief, Feb. 2011, at 8.
  • [19] Adam Liptak, The Case of the Plummeting Supreme Court Docket, N.Y. Times, September28, 2009.
 
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