Bloomberg
Companies Spurned as Roberts Court Withholds ‘Thumb’ From Justice Scales
By Greg Stohr
March 28, 2011

Businesses are on a rare cold streak at the U.S. Supreme Court.

In the past three months the justices have backed shareholders, employees and accident victims in suits against companies. The U.S. Chamber of Commerce has lost five of the six cases in which it has filed a brief during the current nine- month term, after winning 13 of 16 a year earlier.

The recent rulings underscore the hazards of pinning the court with a label, “pro-business” or otherwise. They also point to the influence wielded at the court by President Barack Obama’s administration, which was on the winning side in each of the Chamber of Commerce’s six cases, compiling a 5-0 record in head-to-head clashes with the trade group.

“The idea that the court is aligned with business has always been overstated,” said Tom Goldstein, an appellate lawyer at Goldstein, Howe & Russell PC and the creator of the Scotusblog website. “It’s much more nuanced.”

The business losses this year have been both frequent and one-sided. The court voted 8-0 to let accident victims sue automakers for not installing safer seatbelts; 9-0 to buttress shareholder suits against drugmakers for concealing evidence of dangerous side effects; and 8-0 to bar companies from challenging the release of government documents on corporate privacy grounds.

The Chamber of Commerce says it has won at least half its cases in each of the last 13 court terms, including 69 percent in the five completed terms since John Roberts became chief justice.

‘Lopsided Margins’

The justices were unanimous in two workplace retaliation cases as well. They allowed suits by a man who was fired after his fiancée complained about alleged sex discrimination at their company and by a military reservist who said a biased supervisor persuaded a company official to fire him.

A third retaliation ruling was 6-2, protecting people who complain orally rather than in writing about alleged wage violations. As in many of the early cases, Justice Elena Kagan didn’t take part because she played a role in the litigation while serving as Obama’s solicitor general.

“The business decisions so far this term are consistent with what we have been saying for a long time: The business cases are generally won and lost by lopsided margins,” said Robin Conrad, executive vice president of the Chamber of Commerce’s litigation unit. “They are generally not easy cases. But they are not ideological. Nor are they decided with a thumb on the scale.”

Pro-Business Reputation

The court has developed a pro-business reputation in some quarters. A study last year by the Constitutional Accountability Center, which advocates for environmental safeguards and civil rights, concluded that the court rules for business today more frequently than it did a quarter century ago. An earlier study by the center attributed the pro-corporate tilt to the court’s five current Republican appointees.

The center’s president, Doug Kendall, applauded the recent rulings while cautioning against reading too much into them.

“It’s too soon to say either that something has changed or that something remains the same,” Kendall said. “The chamber has suffered a short-term losing streak, but that’s happened before, even in the Roberts court.”

A ‘Real Test’

Kendall said the “real test” for the court will come in the final three months of its term, when it rules in cases involving class actions and arbitration. The court tomorrow will hear perhaps the biggest case of its term, a bid by Wal-Mart Stores Inc. (WMT) to stop a class-action gender-bias suit on behalf of potentially a million female employees.

The following day, the court will use cases involving Mylan Inc. and Teva Pharmaceutical Industries Ltd. (TEVA) to consider whether patients can sue generic-drug manufacturers for failing to disclose the risk of side effects. Patient advocates are aiming to extend a 2009 Supreme Court ruling that permitted failure-to- warn suits against brand-name drugmakers.

The case pits the industry against patients as well as acting Solicitor General Neal Katyal, the Obama administration’s top Supreme Court lawyer; 42 state attorneys general and the District of Columbia; and the American Medical Association.

“It’s pretty much the generic-drug companies against the world,” said Louis Bograd, a lawyer who will argue before the justices on behalf of two women aiming to press lawsuits.

Influential Position

Katyal’s position was influential in several of the cases already decided by the court, including the ruling that let accident victims sue automakers. The court often defers to the executive branch’s views on the interpretation of statutes and regulations.

In some of the yet-to-be-decided cases, Katyal is arguing alongside the Chamber of Commerce. Both are opposing a bid by states to sue power companies including American Electric Power Co. in an effort to reduce carbon dioxide emissions. Katyal is also backing the trade group in its challenge to an Arizona law that penalizes employers for hiring illegal aliens.

By the end of the term, the record for both business advocates and the federal government may be much more mixed.

The term so far shows “that the people who claimed some sort of pro-corporate or pro-business bias are wrong,” said Roy Englert, an appellate lawyer at Robbins Russell Englert Orseck Untereiner & Sauber LLP. At the same time, “don’t leap to the equally silly opposite conclusion that the court is showing an anti-business bias in its recent decisions. It’s just deciding one case at a time.”