A Simplistic Compliment Endures: The Roberts Court As “Pro-Business”

supreme court

Cross-posted at WLF’s Forbes.com contributor page

“The Roberts Court is pro-business.”  The Roberts Court “comes to the defense of business.”

Stories peddling this angle seem to be a compulsory part of reporting at the conclusion of each Supreme Court term. The completion of the October 2012 term is no exception. King & Spalding’s Ashley Parrish took strong exception to this characterization of the Court during Washington Legal Foundation’s annual end-of-the-term briefing this past Tuesday. The entire program can be viewed here.

The “pro-business” bromide is a trite and woefully simplistic byproduct of the need to label things. One could argue that the term implies judicial bias, i.e. deciding cases based on the nature of the litigant rather than on the law. It can also be seen as ideological or political in nature. If, for instance, Justice Ginsberg happened to be the Chief Justice at a time when the Court’s rulings favored free enterprise, would we be seeing stories about how pro-business the “Ginsberg Court” is? Further, has anyone seen the justices who rule against business litigants described as “anti-business”?

As an institution which for 36 years has sought to advance legal principles which support the conduct of free enterprise, Washington Legal Foundation views “pro-business” Court as a compliment. We’re pleased that in the nine cases in which we filed during the October 2012 term, seven resulted in victories for “business” litigants. Our perspectives on the law, on the judiciary’s limited role, and on constitutional protections for business entities are prevailing. But WLF should not be alone in applauding this Court’s rulings against plaintiffs’ lawyers, activist groups, and federal regulators. Businesses employ Americans, Americans invest in businesses, and our free enterprise system gives people of all backgrounds a fighting chance to succeed.

So if a label must be imposed, did the Roberts Court earn its “pro-business” stripes this term? If one looks strictly at the numbers, generally it did.

By our count, in the 28 cases which directly affected free enterprise, free enterprise “won” 21 and “lost” 7. Continue reading

Supreme Court Observations: Clapper v. Amnesty International

supreme court

Cross-posted at Forbes.com’s WLF contributor page

The Supreme Court this week ruled that a group of American lawyers lack standing to challenge the 2008 law that expanded the U.S. government’s authority to engage in electronic surveillance of overseas aliens suspected of terrorism.  To hear the reaction of the ACLU and other civil liberties groups to the decision in Clapper v. Amesty International, one would think that the Supreme Court is abandoning the rule of law and abdicating its responsibility to oversee the activities of the Executive Branch.  Nonsense.  The Court simply denied a right to sue by individuals who concede that they have no evidence that they have been subjected to surveillance.  The decision is consistent with a long line of cases that have insisted on evidence of injury before a suit can go forward, particularly when the suit implicates national security concerns.

At issue are the 2008 amendments to the Foreign Sovereign Immunities Act (FISA).  The amendments permit the federal government to engage in overseas surveillance of suspected terrorists under limited circumstances.  But such surveillance is permitted under the FISA Amendments (FAA) only after the government has sought and obtained the consent of the FISA Court, a special court established to address national security issues.

On the day that the FAA was enacted, several lawyers and organizations (represented by the ACLU) filed a lawsuit seeking an injunction against surveillance conducted pursuant to the FAA.  They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles.  Named as defendants were several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA).  Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs expressed a fear that the government would end up overhearing some of their conversations with those foreigners who are being targeted. Continue reading

Supreme Court Hears Challenge to Electronic Surveillance

The Supreme Court heard oral arguments today in Clapper v. Amnesty International, a case that will decide whether a group of American lawyers have standing to challenge the 2008 law that expanded the authority of the U.S. government to engage in electronic surveillance of overseas aliens suspected of terrorism.  Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs fear that the government will end up overhearing some of their conversations with those foreigners who are being targeted.  The nine justices appeared to be closely divided on whether such fears are sufficient to support the plaintiffs’ standing claims.

In asking the Court to uphold their standing, the plaintiffs assert that if they are not permitted to challenge the surveillance law, then no one will be able to do so.  They may well be correct in that assertion, but that is immaterial. If no potential plaintiff can demonstrate that he has been injured by the law, the courts have no reason to examine claims that the law might infringe on someone else’s constitutional rights.  Of course, nothing prevents the plaintiffs from raising their concerns with appropriate officials in the Executive Branch and Congress, the branches of government with primary responsibility for national security matters.

The 2008 law is an outgrowth of the revelation by The New York Times in 2005 that the Bush Administration had adopted a Terrorist Surveillance Program (TSP), under which the overseas communications of suspected terrorists were being monitored.  Some critics charged that the TSP violated the requirements of the Foreign Intelligence Surveillance Act (FISA), a 1978 congressional statute that sought to regulate the use of electronic surveillance for national security purposes.  In response, Congress amended FISA in 2008 to establish a supplemental procedure whereby the Government could obtain judicial approval to engage in the sorts of overseas electronic surveillance undertaken pursuant to the TSP.

On the day that the amendments were enacted, several lawyers and several organizations (represented by the ACLU) filed a lawsuit seeking an injunction against the conduct of surveillance pursuant to the new law, the FISA Amendments Act (FAA).  They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles.  Named as defendants are several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA).  The federal appeals court in New York held that the plaintiffs had standing to challenge the FAA; in June, the U.S. Supreme Court agreed to review that decision. Continue reading

Clapper v. Amnesty Int’l: SCOTUS Will Hear Challenge to Foreign Surveillance Law

Guest Commentary

Amanda McKinzie, a 2012 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

From the day Congress amended the Foreign Intelligence Surveillance Act of 1978 (FISA) to allow the communications of non-United States persons to be intercepted upon approval by the United States Foreign Intelligence Surveillance Court (FISC), parties have challenged the legislation’s constitutionality. Once such case, Clapper v. Amnesty International USA, recently reached the U.S. Supreme Court. The Court granted the federal government’s petition for certiorari on Monday, May 21, and will decide during the October 2012 term whether those challenging the law have Article III standing to sue.

The amendments to FISA do not permit the government to intercept communications of United States citizens to be intercepted. Despite this prohibition, the Clapper plaintiffs – U.S. attorneys, journalists, and labor, legal, media, and human rights organizations – claim they are fearful of being monitored. They assert that because they frequently communicate with potential international targets, there is a high probability that information they exchange will be intercepted. The plaintiffs further claim that based on this “well-founded fear,” they have expended much time, effort, and money in maintaining the confidentiality of their communications from potential interception. Accordingly, they argue that the future injury of interception coupled with their present expenditures provide standing to sue.  Continue reading

Finger on the Pulse: From Our Blogroll and Beyond

  • Sign of things to come in U.S.?: English drug cost cop denies government coverage of Lupus drug (Drug Wonks)
  • Much talk from SEC Chairman in reply to U.S. Senator’s question on foreign corruption enforcement, but will it lead to action? (FCPA Professor)
  • FTC false advertising settlement with Reebok contains guidance nuggets for other advertisers (FDA Law Blog)
  • Calls increase for releasing legal rationale behind drone attack on al-Qaeda’s Anwar al-Awlaki (Lawfare)
  • Federal Judicial Center issues revised guide on courts and scientific testimony (Mass Torts Defense)
  • Pointless Occupy Wall Street “movement” misses the point: the ever-present influence of government, not corporations, is core of American economic malaise (Professor Bainbridge)
  • Too much, not too little, regulation of genetically-enhanced food products is bad for consumers (Truth on the Market)
  • Cracks in the monopoly?: Online self-help legal site takes on state bar association with lawsuit over unauthorized practice of law (WSJ Law Blog)
  • Department of Interior poised to join the natural gas fracking regulatory party with regulatory proposal (The Hill E-2 Wire)

Finger on the Pulse: From Our Blogroll and Beyond

  • At urging of Pennsylvania Attorney General, Third Circuit seeks PA Supreme Court opinion on minority shareholders’ right to sue over merger (Legal Intelligencer)
  • Policy ideas have consequences: Soda tax proposed in France, Coca-Cola puts $24 million expansion of French plant on hold (Vancouver Sun)
  • Can a suit be certified as a class action solely for purpose of determining punitive damages after Wal-Mart v. Dukes? 9th Circuit asks a district court to consider (California Punitive Damages)
  • Back to product liability basics at the Seventh Circuit in “consumer expectations” decision (Consumer Class Actions and Mass Torts)
  • Liability without culpability: A deeply troubling trend (D&O Diary)
  • When a single-used medical device is reprocessed and does harm, is the device’s manufacturer liable for injuries? Minnesota federal court issues ruling (Drug & Device Law)
  • What we can learn about the state of federal regulation from government’s Unified Regulatory Agenda (RegBlog)
  • Is a new ACLU suit forthcoming, now that a U.S. drone has reportedly eliminated radical al-Qaeda leader Al-Aulaqi? (Volokh Conspiracy)
  • More false patent marking suits bite the dust under America Invents Act reform provision (WSJ Law Blog; for more see this Legal Pulse post)

Federal judge upholds some of Alabama immigration law

In a 115-page memorandum opinion, Judge Sharon Lovelace Blackburn upheld certain portions of the Alabama immigration law passed in June and challenged by the Department of Justice. She enjoined other portions out of concern for preemption by federal law. A quick run-down of the provisions upheld and enjoine


  • A provision prohibiting unauthorized aliens from enrolling in a public state university.
  • A misdemeanor crime for unauthorized aliens to apply for, solicit, or perform work. Continue reading

ATS Case Heats Up In D.C. Circuit

Litigation regarding the scope of the Alien Tort Statute (ATS) appears likely to reach the boiling point in the coming year.  The U.S. Supreme Court is poised this fall to grant review of a Second Circuit decision, Kiobel v. Royal Dutch Petroleum, which held that the ATS does not apply to claims against corporations.  This week, the D.C. Circuit gave signs that it may grant rehearing en banc in another ATS case, Doe VIII v. Exxon Mobil Corp., and its rehearing decision has the potential to bring a halt to virtually all ATS litigation.

The ATS is a 1789 federal statute that has been used by human rights activists in recent decades to sue multinational corporations in U.S. courts for alleged overseas human rights violations.  The ATS creates federal court jurisdiction for tort claims by aliens alleging that the defendant violated “the law of nations.”  The statute lay dormant for nearly 200 years, with most legal scholars admitting that they had little idea what the statute meant.  But the ATS has quickly become a favorite of activists seeking to challenge the overseas conduct of U.S. corporations; the suits often allege that corporate defendants ought to be held responsible (as “aiders and abetters”) for alleged atrocities committed by a foreign country’s troops while guarding facilities operated by the corporation.  While to date no federal court has imposed a judgment against a corporation in any case raising claims of that sort, scores of ATS cases are pending in courts across the country and are creating a major headache for the business community.

The news from the D.C. Circuit arises in a suit alleging that Exxon Mobil aided and abetted atrocities allegedly committed by Indonesian troops while protecting oil facilities from rebels in the troubled Aceh region.  On July 8, 2011, a D.C. Circuit panel voted 2-1 to reinstate the ATS claims against Exxon.  The panel members split on three issues: (1) whether corporations are subject to suit under the ATS (the panel majority rejected the Second Circuit’s conclusion in Kiobel that corporations are not subject to suit); (2) whether the ATS permits “aiding and abetting” liability (the majority rejected a separate Second Circuit decision in Presbyterian Church of Sudan that cut back significantly on aiding and abetting liability); and (3) whether the ATS applies to torts committed in a foreign country (the majority held that the ATS does so apply, while the Second Circuit in Kiobel stated that whether the ATS applies extraterritorially is an “open question”).  Judge Brett Kavanaugh dissented on all three issues.

Continue reading

Finger on the Pulse: From Our Blogroll and Beyond

  • Environmentalists for Foreign Oil Dependence strikes again with suit to stop domestic energy source (NASDAQ)
  • Facebook, Twitter as the new medium for raising money for IPO? Not quite yet, says SEC (Blog of Legal Times; Forbes.com)
  • Supreme Court set to vote on key punitive damages cert petition next week (California Punitive Damages)
  • U.S. companies doing business in Russia? Остерегайтесь (beware) the Foreign Corrupt Practices Act (FCPA) (White Collar Defense and Compliance)
  • Plaintiffs lawyers stretch to spin private litigation off of FCPA investigations (FCPA Professor)
  • The role of statistics in Supreme Court cases, and when they should (and should not) be considered at issue in recent ruling (Josh Blackman’s Blog)
  • Article in venerable Foreign Policy journal on legality of U.S. Predator drone strikes effectively rebuked (Lawfare)
  • Who knew?: Including a green-colored drop of water on water bottle isn’t “misleading” under California law (Mass Tort Defense; Consumer Advertising Blog)

In Supreme Court’s al-Kidd Ruling, No Silver Lining for Losing Side

The Supreme Court this week ruled unanimously to throw out the ACLU’s tort law claim against former Attorney General John Ashcroft, finding that he was entitled to qualified immunity from suit.  It did not take long, however, for ACLUers to begin asserting that their loss contained numerous silver linings which did not let senior government officials completely off the hook.  They pointed to several of the Court’s concurring opinions as their source of hope.

Those hopes are misplaced.  A majority of the Justices made clear that tort claims of the sort asserted against Ashcroft have no chance of success.  Justice Anthony Kennedy, who authored one of the concurring opinions, signed on to the Court’s opinion in full – meaning that Justice Scalia’s majority opinion (not the separately expressed views of Justices Ginsburg, Breyer, and Sotomayor) is the Court’s definitive statement regarding the Fourth Amendment issues at stake.  Moreover, Kennedy’s concurring opinion said nothing that undercuts the sweeping nature of Scalia’s qualified immunity decision. Continue reading