Corporate Accountability

U.S. Supreme Court’s business-friendly reputation takes a hit

The U.S. Supreme Court in its term that concludes this week was not quite as business friendly as it has been in recent years, with President Donald Trump’s appointee Brett Kavanaugh writing a pivotal one of the batch of rulings that defied corporate interests.

Overall, the court’s rulings helped the business community more than they hurt, a regular feature under conservative Chief Justice John Roberts. But despite a 5-4 conservative majority, the court also signaled during its 2018-2019 term that there are limits to what business can expect.

While the court in recent years generally has favored the business community over employees, consumers and government regulators, several business-related cases were decided this term in favor of challengers to corporate interests on critical issues such as class action litigation, antitrust law, arbitration, investor protection and the environment.

Kavanaugh, a conservative known for his pro-business rulings in his prior role as a federal appeals court judge, wrote the most high-profile business-related decision of the term. He joined the court’s four liberal justices in a 5-4 ruling in May that let a class action lawsuit proceed against Apple Inc in which consumers accused the technology company of violating antitrust law by monopolizing the market for iPhone applications through its App Store.

Apple had been backed by Trump’s administration in the case.

The Constitutional Accountability Center, a liberal legal group, has tracked corporations’ success at the Supreme Court by analyzing cases in which the U.S. Chamber of Commerce, the country’s largest business lobby group, has offered the justices views defending corporate positions.

According to the center’s analysis, the chamber ended up on the winning side in 12 of 21 cases (57 percent) it weighed in on this term, among the lowest rates since the center began its tracking a decade ago. Three other cases that drew chamber interest did not reach a ruling or favor one side, the analysis noted.

The chamber’s success rate was 90 percent in the 2017-18 term and 80 percent in the 2016-2017 term, the center said.

“While the chamber’s rate this term was not quite as high as it has been in some recent terms, it still managed to score a significant number of victories,” said Brian Frazelle, one of the center’s attorneys.

Kavanaugh, who replaced retired Justice Anthony Kennedy and joined the bench in October – the first month of the court’s current term, ended up writing two decisions siding with people who sued companies for alleged wrongdoing. The court’s term ends on Thursday.

In addition to the Apple decision, Kavanaugh in March sided with the families of two U.S. Navy veterans who died from asbestos exposure, claiming that equipment manufacturers had a duty to warn about the risk.

Kavanaugh did not take part in another key business-related ruling in March because he was involved in the case in his prior role as an appeals court judge in Washington. The court in that case safeguarded investor-protection laws in a decision against a New York investment banker who the Securities and Exchange Commission banned from the industry.

In two further rulings challenging corporate interests, the court backed the ability of states to ban uranium mining and allowed certain workers to arbitrate instead of sue companies over claimed wrongdoing.


In upholding Virginia’s 1982 moratorium on uranium mining, the court backed states’ rights over business interests in a ruling written by Justice Neil Gorsuch, Trump’s other Supreme Court appointee.

At a Chamber of Commerce event last week, the group’s senior vice president, Daryl Joseffer, acknowledged the common narrative that the court is “wildly pro-business.”

“This term certainly disproves that,” Joseffer said, “as frankly every term in the past has disproven that.”

Some experts dispute the assumption that the court, especially its conservative members, makes decisions with how corporations will fare in mind. Instead, the justices hold views on governmental authority, how to interpret laws and the eligibility to sue, among other legal doctrines, that often favor business, said Jonathan Adler, a law professor at Case Western Reserve University in Cleveland.

“In any given term, as the mix of cases changes, so does the extent to which the court appears pro-business,” Adler said.

While conservative justices back the business community at a higher rate than their liberal colleagues, legal scholars have also documented how the current liberal justices favor business more often than past liberal justices.

In fact, the court unanimously ruled in favor of business interests in seven cases, including letting Merck & Co try again to throw out lawsuits by patients accusing the company of failing to properly warn them of debilitating thigh-bone fractures from taking its osteoporosis drug Fosamax.

On Wednesday, liberal Justice Elena Kagan wrote an important ruling favorable to business interests that constrained the power of federal agencies by scaling back a legal doctrine that calls for judges to give agencies deference to interpret their own regulations.