Business looks to Kavanaugh to extend Supreme Court hot streak
Abortion rights and civil liberties have so far dominated the fight over Brett Kavanaugh’s nomination to the Supreme Court, but his confirmation would mean a victory for another constituency: business.
Industry groups, led by the Chamber of Commerce, have spent decades bringing lawsuits and filing briefs to the top court in hopes of reining in regulatory power and winning rulings favorable to business. And court-watchers believe Kavanaugh, who was recommended to President Donald Trump by the conservative Federalist Society and worked in the pro-business Bush administration, would help industry continue its hot streak at the court.
The Supreme Court last term was the most business-friendly in modern memory, according to the Constitutional Accountability Center, a progressive public-interest law firm. The group concluded in a new report that Kavanaugh would tilt the court even more in business’ favor, noting that the high court under Chief Justice John Roberts already has sided with the Chamber, which the center views as a proxy for all business interests, in more than 70 percent of relevant cases since 2006. That’s in contrast to the Chamber’s 56 percent win record under Roberts’ predecessor, Chief Justice William Rehnquist, and 43 percent under Chief Justice Warren Burger, according to the center.
Kavanaugh would replace retiring Justice Anthony Kennedy, who was generally a reliable supporter of corporate interests, though he was viewed as the court’s swing vote. Progressives and business groups alike believe Kavanaugh would give industry a solid fifth vote in favor of reining in regulations governing the environment, workplace safety and consumer protections.
“What we have is a confluence of pro-corporate justices and an emboldened and savvy corporate litigation movement led mostly by the Chamber of Commerce,” said Elizabeth Wydra, president of the Constitutional Accountability Center. “We could see business be even bolder with the types of cases they bring to the court.”
While progressives agonize about social issues, the Trump White House is openly marketing Kavanaugh as something different — a foe of the administrative state. As a U.S. District Court judge, Kavanaugh overruled federal regulators 75 times on cases involving clean air, consumer protections, net neutrality and other issues, according to a White House memo distributed to business groups on the night Kavanaugh was nominated.
“These are drier, complicated cases, they don’t carry the political and narrative weight as more personal, individual rights cases,” Wydra said. “These cases affect pretty much every American, especially working Americans and marginalized communities, but they often aren’t seen as sexy, so they get less attention.”
Progressives, she said, have been “kind of sleeping on some of these big issues.”
While conservative groups have chipped in millions of dollars to push Kavanaugh’s confirmation, business lobbies aren’t promoting him as aggressively. Among the big industry groups, the National Association of Manufacturers doesn’t weigh in on Supreme Court nominees. The Chamber has written a letter in support of Kavanaugh and President Thomas Donohue endorsed him in a blog post Monday.
But big business mobilized decades ago to improve its outcomes at the Supreme Court. The Chamber’s legal efforts date to a memo written in 1971 by Lewis Powell, two months before President Richard Nixon named him to the Supreme Court.
In his memo to the Chamber, Powell wrote that free enterprise was under assault, corporate antagonist Ralph Nader was on the rise, and the business community was doing nothing about it.
“The painfully sad truth,” Powell wrote, is that business has responded “by appeasement, ineptitude and ignoring the problem.”
The Powell Memorandum, as it came to be known, inspired a host of legal shops, including the Pacific Legal Foundation, set up in 1973, and the U.S. Chamber Litigation Center, founded in 1977. NAM has been involved in litigation since the 1980s and the National Federation for Independent Business since 1994.
The groups run what function as in-house law firms to bring suits and file friend-of-the-court briefs to support or oppose legal arguments that affect their members. At the Supreme Court, the groups weigh in with amicus briefs to influence which cases justices choose to hear.
“Year after year, the majority of the Supreme Court’s business cases are lopsided or unanimous decisions correcting lower courts’ obvious errors in applying the Court’s own well-established precedent,” said Steven Lehotsky, senior vice president of the Chamber litigation center.
The Chamber boasts a roster of talent that includes chief legal officer John Wood and senior counsel Janet Galeria, both of whom clerked for Supreme Court Justice Clarence Thomas. Lehotsky was a clerk to the late Justice Antonin Scalia. Last year, the group was involved in 31 cases and filed 164 amicus briefs in federal and state courts. It enlists the help of top legal firms, including Mayer Brown and WilmerHale.
“The role the Chamber has been able to play in the last couple decades is to have an important signaling effect about what big business thinks is important,” said Robert Weissman, president of Public Citizen. “That’s plainly had an impact on the courts. Neither Public Citizen nor any public interest group has influence as great as that.”
Business groups dispute that the court has grown friendlier to their interests. Rather, they say, liberal groups are reaching the limits of their effort to broaden the court’s interpretation of existing regulations.
“We’re having more success with the court rejecting novel legal theories that are deviating from what the law actually says, and putting it back to Congress if they don’t like the result,” said Karen Harned, who leads the legal center at NFIB. “It’s not because they want to rule in favor of business. The way the court is right now, the majority looks at what the law says.”
Harned pointed to a case involving Lilly Ledbetter, a Goodyear employee who was near retirement when she learned she was making thousands of dollars less than her male colleagues. The Supreme Court rejected her sex discrimination claim because she didn’t file her suit within 180 days of the start of the discrimination, as required by statute.
Congress quickly responded by changing the law. Lawmakers passed the Lilly Ledbetter Fair Pay Act, which resets the 180-day statute of limitations with each paycheck. President Barack Obama signed it into law in 2009.
“The statute was clear,” Harned said. “They said, ‘I’m sorry, this is what the statute says,’ and immediately Congress enacted the Lilly Ledbetter act. That’s how it’s supposed to work.”