Corporate Accountability

Business racks up wins with Roberts court

By Benjamin Goad


Business interests are faring well at John Roberts’s Supreme Court, prevailing more often than not since the current chief justice took the helm almost a decade ago.


The Roberts court has sided with the U.S. Chamber of Commerce 71 percent of the time when the powerful business lobby formally involves itself in a case, according to a tally kept by the liberal Constitutional Accountability Center (CAC).


“Businesses tend to do very well, and that’s especially true in the closer cases,” said Tom Donnelly, counsel for the center. “They find a very receptive ear at the Roberts court.”


The Chamber’s tally for the current term differs slightly from that of the center, but the business group doesn’t dispute its success. The Chamber attributes its winning record to consensus on the court when it comes to business cases, rather than any deference to corporations themselves.


“The reality is an overwhelming number of business cases are decided by wide margins and are not particularly contentious,” said Sheldon Gilbert, senior counsel for litigation for the U.S. Chamber’s Litigation Center.


To be sure, the high court does not always side with businesses in major cases.


The justices, for instance, parted ways with business in their 2012 decision to uphold the Affordable Care Act, and the past week’s ruling to reinstate a set of contentious Environmental Protection Agency air quality regulations.


“It’s not unequivocal,” Georgetown law professor Marty Lederman said, though he emphasized that the ideology of the justices reflect the presidents who nominated them.


Republican presidents appointed five of the court’s nine current justices.


The CAC figures include 115 cases in which the Chamber was party to a case, filed an amicus brief or represented a party since January of 2006, after Roberts and Justice Samuel Alito joined the court.


By comparison to the 71 percent mark under Roberts, the Chamber’s view prevailed only 43 percent of the time under former Chief Justice Warren E. Burger between 1981 and 1986 and in 56 percent of cases decided during William Rehnquist’s tenure as chief.


But the statistics do not encapsulate every case for which business has a vested interest. The Chamber, for example, is not involved in the current term’s most closely watched case, which involves a challenge from a pair of companies who oppose ObamaCare’s requirement that companies include coverage for forms of contraception in their employee health plans.


Still, the CAC lists 10 cases decided in the current term in which the Chamber participated. It was on the winning side in eight. By the Chamber’s count, it was involved in 12 cases decided so far this term.


The court sided with Wal-Mart in a dispute over the company’s denial of long-term disability benefits and with Northwest Airlines in a case involving a customer who challenged his removal from the carrier’s frequent flyer program.


The court also rejected a collective action brought by 800 steelworkers who had sought back pay from their employer, among other cases.


Gilbert noted that the overwhelming majority of Chamber-involved cases were decided unanimously.


“Rather than ruling in favor of businesses, the justices are often refusing attempts to stretch the law,” he said.


Perhaps as telling as the justices’ opinions is their selection of cases to hear, said Erin. E. Murphy, a partner at Bancroft PLLC, who argued a major campaign finance case before the court late last year.


“Clearly, you have an uptick in business cases that the court has taken,” Murphy said. “They understand the importance of these issues to the broader community.”


As in previous years, the court has saved some of its biggest decisions for the end of the current term, which expires in June.


Apart from the birth control case brought by the craft chain Hobby Lobby, the court is still grappling with a host of cases with major implications for the private sector.


In January, the attorneys for the Chamber argued on behalf of Noel Canning, an Oregon-based soft drink bottling and distribution company that challenged a trio of President Obama’s recess appointments to the National Labor Relations Board.


The NLRB has been a frequent punching bag for business groups under the Obama administration, and a ruling against the labor board could call hundreds of decisions into question, experts say.


During oral arguments, a majority of the justices voiced skepticism about the constitutionality of the 20121 appointments, which were made at a time when the Senate maintained it was in session.


The court’s ruling in a case known as Halliburton Co. v. Erica P. John Fund, Inc. could make it more difficult for investors bring class-action lawsuits against companies.


Also hanging in the balance is a challenge to the Obama administration’s plans for greenhouse gas regulations, which have drawn fierce criticism from an array of business groups and their allies in Congress.


The fate of those cases, observers say, will go a long way toward defining just how sympathetic the current court is to corporate interests.


“The story of this term is still very much developing,” Lederman said.