Other Business-Related Issues in the Roberts Court

In addition to these more traditional issue areas involving business interests before the Court, it has been noted that the Roberts Court appears to be deciding more cases in other issue areas that have important implications for economic policy and big business.[1] One issue area in which the Roberts Court appears to deviate from the Rehnquist Court is in the area of federalism and federal preemption. The reinvigoration of doctrines that draw lines between deferral and state power was one of the hallmarks of the Rehnquist Court.[2] Beginning in the early 1990s, the

Rehnquist Court handed down decisions that limited federal power under the Commerce Clause8 and Section 5 of the Fourteenth Amendment,9 and protected state powers under the Tenth Amendment10 and the Eleventh Amendment.11 The cases were often decided by 5-4 votes, with ChiefJustice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas in the majority supporting states’ rights and limited federal power, and Justices Stevens, Souter, Ginsburg, and Breyer in dissent. Federal preemption cases involve instances in which federal and state law regulated the same activity, and the Court must determine whether there is room for the state and the federal government to regulate the activity concurrently, or whether the federal law is so pervasive or such a conflict exists between the laws that the federal law preempts the state from regulating.

The Roberts Court appears to be taking a different tact than the Rehnquist Court in federalism and federal preemption cases. One indication of a new direction can be seen in the comparison of votes by Roberts and Alito, and the justices they replaced, as I reported with union activity and economic activity cases in the previous section. The shifts in voting behavior of justices relative to the justices they replaced are stark, especially as compared to Sotomayor and the justice she replaced.12 I selected cases coded as federalism cases in the Database, and computed the number and proportion of votes for federal power, and then did the same for cases coded specifically as federal preemption of state laws, regulations, or jurisdiction (which are a subset of the federalism issue area).13 For these cases, the Database codes votes for federal power as liberal, and conversely, votes for state power as conservative. The results are reported in Table 2.4.

Over the course of their careers, Rehnquist voted for state authority over federal power 60 percent of the time, and O’Connor 52 percent of the time. On the narrower issue of preemption, Rehnquist supported states over the federal government 59 percent of the time, and O’Connor opposed federal preemption of state laws 52 percent of the time. In contrast, Roberts and Alito have been [hereinafter Clayton & Pickerill I]; J. Mitchell Pickerill & Cornell W. Clayton, The Rehnquist Court and the Political Dynamic of Federalism, 2 Persp. ON Pol. 233 (2004).

  • 8 See, e.g., United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000).
  • 9 See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Morrison, 529 U.S. 598.
  • 10 See, e.g., New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997).
  • 11 See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 527 U.S. 706 (1999); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Bd., 527 U.S. 666 (1999); Kimel, 528 U.S. 62; Bd. of Trs. of the Univ. ofAla. v. Garrett 531 U.S. 356 (2001).
  • 12 The Database has only a handful of relevant votes for Justice Kagan and so I do not include a comparison of her record with that ofJustice Stevens.
  • 13 The cases are coded as 100020 and 100030 for the variable “Issue.”

Table 2.4 Direction ofVotes byjustices Rehnquist, O’Connor, Roberts, and

Alito in Federalism and Preemption Cases


Federalism votes

Preemption votes

For states

For Federal government

For states

For federal government


132 (60%)

89 (40%)

68 (59%)



84 (52%)

79 (49%)

48 (52%)



4 (24%)

13 (77%)

8 (29%)

20 (71%)


3 (21%)

11 (79%)

8 (30%)

19 (70%)



61 (64%)

29 (52%)



9 (41%)

13 (59%)

8 (50%)

8 (50%)

much more likely to vote for federal power in cases pitting federal power against state power—Roberts voting for federal power 69 percent of the time, and Alito voting for the federal government over states 67 percent of the time in federalism cases. Roberts and Alito favored the federal government in preemption cases 71 and 70 percent of the time, respectively. Even despite the small number of votes, it is striking that Roberts and Alito seem to have behaved very similarly to their predecessors in cases in the union and economic activity categories, but, at least in the first handful of cases in the area, they have diverged in an area in which conservatives on the Rehnquist Court had been deemed so successful. The shift is especially striking compared to the voting behavior of Souter and his replacement, Sotomayor. Souter voted for the federal government 64 percent of the time for all federalism cases and only 48 percent of the time for preemption cases. Since replacing him on the bench, Sotomayor has developed a comparable record to Souter, voting for federal power in 59 percent of all federalism cases and 50 percent of preemption cases.

The federalism cases are not direct measures of support for business interests by the Roberts Court, but the nature of those cases generally present a challenge to the federal government’s regulatory authority. They may indicate, as some commentators have suggested, that the Roberts Court has found new ways to support business interests. One subset of the federalism decisions worth considering in a little more depth are cases involving federal preemption of state power. A number of commentators have observed that, at least anecdotally, the Roberts Court appears to be taking the side of federal regulation over state law in cases with significant implications for business interests. For instance, in Riegel v. Medtronic,[3]

the Court held that a manufacturer of a medical device that had satisfied federal Food and Drug Administration standards could not be sued under state tort law because the federal regulations preempt the state tort law. The vote was 8-1, with Justice Ginsburg lodging the sole dissent. More recently, in National Meat Association v. Harris,15 a unanimous Court ruled that the Federal Meat Inspection Act (FMIA) preempted attempts by California to ban the slaughter of “nonambulatory” animals because the state law went further than and was inconsistent with the FMIA and related regulations. The decision thus prohibits (or makes it much more difficult for) states to regulate the meat industry regarding the humane treatment of animals. And in Kurns v. Railroad Friction Products Corp.,16 a 6-3 Court ruled that the eighty-five-year-old federal statute, the Locomotive Inspection Act, preempted state tort law in a lawsuit by a railroad employee against the railroad company alleging exposure to asbestos during his thirty-year career as an employee of the company. The decision in essence shielded the company—and other railroad companies similarly situated—from liability.

In Table 2.5, I compare the outcomes of preemption decisions during the Roberts Court to previous courts.

As Table 2.5 shows, the Vinson and Warren Courts ruled for federal power 60 and 70 percent of the time, respectively. The Burger and Rehnquist Courts shifted a little, ruling for federal power in 54 and 50 percent of their preemption decisions, respectively. Through the end of the 2012 term, the Roberts Court ruled for federal power in 66 percent of preemption decisions.

The Roberts Court quite clearly appears then to have turned from what is often characterized as a conservative disposition favoring the states toward a position favoring the federal government. It appears that the federalism cases have presented the Court with competing conservative values—conflicts between the values of federalism and business. As such, it may be less important that the Roberts Court supports federal power than it is to consider federal power over what, as several of the chapters in this volume illustrate. And, of course, federalism is not the only area in which such a conflict is presented to the Court or where we seem to be witnessing such a divergence, at least anecdotally.

There are also a number of other Roberts Court decisions that have had implications for big business. For example, the Roberts Court has limited punitive damages in lawsuits against big business under maritime law;17 it has also used a mixture of procedural and substantive due process arguments to limit punitive [4] [5] [6]

Table 2.5 Direction of Supreme Court Outcomes in Preemption Cases

Chief Justice

Preemption decisions

For states

For federal government

Vinson Court

8 (40%)

12 (60%)

Warren Court

13 (30%)


Burger Court

23 (46%)

27 (54%)

Rehnquist Court

35 (50%)

35 (50%)

Roberts Court

10 (34%)

19 (66%)


89 (42%)

124 (58%)

damages in a tort action.[7] The Roberts Court has also struck down portions of campaign finance laws that restrict the ability of corporations, among others such as unions, to sponsor so-called issue ads near federal elections.[8] And it reversed the white collar criminal conviction of Arthur Anderson for its shredding of documents in the Enron scandal.[9]

Based on the analysis of Roberts Court’s decisions in this section, there does seem to be something new regarding the Court’s outcomes involving business interests broadly defined. The Roberts Court appears to be deciding a higher proportion of those cases in the probusiness direction. In addition, the Court seems to be deciding more cases in favor of business interests that involve a range of legal issues outside traditional union activity and economic activity issues. The Court’s federalism decisions seem to be favoring federal regulation over state regulation where that result may have positive consequences for big business. At the aggregate level, however, the change seems to have been incremental, reflecting continuity in trends that began long before John Roberts replaced William Rehnquist at the helm. The answer to the question posed in this section is that yes, the empirical analysis of the justices’ votes and the Court’s outcomes indicates that, at an aggregate level, it is fair to characterize the Court as business friendly, but the data indicate that the Court has been trending toward the probusiness direction for some time now. Thus, the key to understanding the Roberts Court’s probusiness orientation is not the “Roberts Court” per se, but rather longer-term historical patterns in which legal change on the Court over time is connected to broader political changes over time.

  • [1] Id.
  • [2] See, e.g., Cornell W. Clayton & J. Mitchell Pickerill, Guess What Happened on the Way tothe Revolution? Precursors to the Supreme Court's Federalism Revolution, 34 Publius 85 (2004)
  • [3] Riegel, 552 U.S. 312.
  • [4] 132 S. Ct. 965 (2012).
  • [5] 132 S. Ct. 1261 (2012).
  • [6] Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).
  • [7] Philip Morris USA v. Williams, 549 U.S. 346 (2007).
  • [8] Fed. Election Comm’n v. Wis. Right to Life, 551 U.S. 449 (2007).
  • [9] Arthur Andersen LLP v. United States, 544 U.S. 696 (2005).
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