Federal Courts and Nominations

Just how pro-business is the Roberts Court?

By Tony Mauro

It’s become an annual ritual of the Roberts Court era: as soon as the Supreme Court recesses for the summer, the debate resumes over just how pro-business it really is.

Last year’s Citizens United v. Federal Election Commission decision fueled the discussion by crystallizing liberal criticism of the Court as a tribunal that looks for ways to aid the business community.

Two days after the Court term ended, Sen. Patrick Leahy (D-Vt.) called the Court “the most business-friendly Supreme Court in the last 75 years.” Doug Kendall of the Constitutional Accountability Center issued a report asserting that even though the Chamber of Commerce’s win rate had dipped from 81 to 57 per cent compared to the previous term, “the Chamber prevailed in the term’s biggest cases.”

But Mayer Brown partner Lauren Goldman has run the numbers and says “It’s very unfair to say the Court is pro-business.” In cases pitting individual plaintiffs against business entities, she counts nine wins and nine losses for business. Some of the wins were big wins, she acknowledged, but said, “The court takes the cases as they come, and decides them on the facts and the law.”

The U.S. Chamber of Commerce agrees. At an end-of-term briefing in late June, executive vice president Robin Conrad dismissed the trope of the pro-business Court as a “silly myth,” as she has in the past. MoloLamken’s end-of-term report also states, “Contrary to the popular view that today’s Court has a ‘pro-business’ bent, the Court often ruled in favor of plaintiffs and against the businesses they were suing.”

There were moments during the term when even Kendall gave “credit where credit is due” to conservative justices who authored or joined decisions that went against business interests, including: Kasten v. Saint-Gobain Performance Plastics Corp., which made it easier for employees to claim they’d been retaliated against for making workplace complaints; Matrixx Initiatives v. Siracusano, which gave the green light to a securities fraud class action; and Williamson v. Mazda Motor of America, which unanimously rejected business claims that certain auto-safety lawsuits at the state level were pre-empted by federal law.

In spite of those early losses for business, Kendall said at the time, “the real test will come later in the term when it takes on issues that have divided the Roberts Court.” Those late-term victories for business came, in the form of Wal-Mart v. Dukes, blocking the biggest discrimination class action in history, AT&T v. Concepcion, bolstering consumer arbitration agreements, AEP v. Connecticut, rejecting state common law lawsuits against energy companies for the harms of climate change, and Janus Capital Group v. First Derivative Traders, which narrowed liability for false statements in securities fraud litigation.

Kendall also analyzed the term’s decisions more broadly than Goldman, counting a commercial speech ruling (Sorrell v. IMS Health) and an election law case (Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett) that benefited business, in addition to those decisions involving private plaintiffs suing businesses.

But Goldman says the wins don’t signify a pro-business tilt. In the Wal-Mart case, for example, she said the Court was in the posture of correcting a lower court error, because “what the 9th Circuit did [in certifying the class] was radical.”

Here is Goldman’s assessment of this term’s and last term’s business cases:

Business vs. Individual Cases in the 2009 & 2010 Terms

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