Bench Memos

Re: Business and the Roberts Court

Scrambling to catch up on the end-of-term happenings while I was away on vacation, I’ll heartily second Jonathan Adler’s understated reference to his Volokh Conspiracy post on the Roberts Court and business cases (as well as Carrie’s comments on the matter). As Jonathan nicely sums it up:

As I hope this post illustrates, the rush to characterize the Court as “pro” or “anti” business based on a handful of cases or even a single term inevitably results in sweeping conclusions that obscure more than they illuminate. While the business community may win more often than not, many of the victories are quite small.  This year, with the exception of At&T Mobility v. Concepcion, most of the business community’s victories came on narrow grounds and largely preserved the status quo. In this regard, the Court largely followed the general pattern of the past few terms. Similarly, the Court did not erect new barriers to plaintiffs’ suits so much as it refused to open new doors. The Court didn’t overturn precedent and move the law in a pro-business direction so much as it refused to move it in an anti-business direction, and so on. And where existing law or precedent did not lead the Court in a pro-business direction, it had no hesitation in reaching an anti-business result.

So is it fair to call the Roberts Court “pro-business”? Looking at the broader pattern of cases, there is little evidence that the Court, or any of the justices, are motivated by a desire to help business, as such. There have been too many Roberts Court decisions in which the business community lost big to support such a claim. But there are many justices on the Court who have doctrinal or jurisprudential commitments — such as a suspicion of policy-making through litigation — that often work to the business community’s advantage. It’s no coincidence that those justices least likely to open doors for plaintiffs’ attorneys in suits against business are also those who reject programmatic litigation against government agencies. As this terms First Amendment cases show, it’s not that the Court has a particular fondness for corporate speech, so much as it is a Court with a highly speech-protective majority. This results in wins for business when corporate speech is at issue, but it also works to the advantage of offensive protesters and non-corporate speakers. And where business can’t marshal arguments that appeal to the justices judicial philosophies, they are less likely to prevail. So rather than say this is a Court that is “pro-business,” I think it is a Court that business often likes — except when it doesn’t.

As for today’s Senate Judiciary Committee hearing on the topic, we’ll see if Democratic senators manage to be more accurate and less demagogic than they were during the Kagan confirmation process last year. (See Part II.C of my hearing testimony for my critique of the dismal quality of Democratic attacks on the Roberts Court.) I wouldn’t bet on it.

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