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.

Of those 28, 14 were unanimous (10 wins and 4 losses); 7 were 5-4 (all wins); and 7 had other configurations (3 losses). So to say that the Court is or certain justices are homogeneously pro-business is just false. In one 5-4 decision, U.S. Airways v. McCutchen, Justice Kagan wrote for the majority with Chief Justice Roberts and Justices Scalia, Alito, and Thomas in dissent. Businesses challenging federal regulations lost a very significant case, City of Arlington v. FCC, 6-3, with Justice Scalia authoring for the Court. Justice Breyer authored a 9-0 opinion which terminated a popular class action lawyer tactic aimed at avoiding federal court (Standard Fire v. Knowles). Justice Kagan wrote for a unanimous Court in Bowman v. Monsanto, a case which involved a favorite anti-business target and its product: genetically modified seeds. Justice Kagan also upheld (9-0) preemption of city regulations supported by environmentalists in American Trucking Association v. Los Angeles.

There were six 5-4 decisions where the majority consisted of The Chief and Justices Scalia, Thomas, Alito, and Kennedy. In five of those outcomes, the approach those Justices utilize to interpret and apply federal statutes or procedural rules prevailed.  The sixth case, Koontz v. St. Johns River Water Mngt., involved a property owner and a state regulator, so studies like the one relied upon by The New York Times in a May “Roberts Court is pro-business” article would not consider it a business case. But the five aforementioned justices issued an outcome cheered by home builders and land users. In such close cases, those justices’ legal and constitutional principles, not a reflexive preference or bias for business over plaintiffs or government, is what made the difference.

A few other developments in this term’s cases demonstrate the over-simplicity of focusing on whether a business won or lost in the Court. For instance, businesses “lost” the FTC v. Actavis case involving antitrust scrutiny of so-called reverse payment drug patent litigation settlements. But the majority agreed with the argument WLF made in its amicus brief that such settlements are not per se unlawful. The company Respondent nominally lost Association for Molecular Pathology v. Myriad Genetics, but the Court upheld their right to patent synthetic complimentary DNA. And consider a case like Clapper v. Amnesty Int’l, where Amnesty challenged the constitutionality of a federal surveillance law. The Court held 5-4 that Amnesty did not have standing to sue. This was not a “business” case, but the Court’s discussion of Article III standing could, as some lawyers have already noted, help some business defendants, such as those accused of data privacy breaches, win pre-trial motions challenging standing.

Such a future for Clapper would mirror the emergence of another non-business Supreme Court ruling — Ashcroft v. Iqbal — as a routinely-cited weapon in business defendants’ motions to dismiss. If the majority of the Chief and Justices Scalia, Thomas, Alito, and Kennedy had such a pro-business impact in mind, they certainly masked it well.

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