Chief Justice Roberts and Big Business | Chapter 10
In June 2013, legal commentator Jeffrey Rosen interviewed Justice Elena Kagan at the Aspen Ideas Festival. This event came on the heels of an historic (and contentious) Term. In the Term’s closing days, the Roberts Court issued opinions on a range of hot-button topics, weighing in on the issue of marriage equality, largely punting on the constitutionality of affirmative action, and voting 5-to-4 to gut the Voting Rights Act. In addition to these headline-grabbing blockbusters, the Court’s business docket also ended with a bang, with the Court deciding a series of ideologically divided cases on issues including workplace discrimination, arbitration, drug safety, and environmental protection. Although these decisions covered a wide range of issue areas, each decision had two things in common: 1) a cohesive (and victorious) bloc of conservative Justices siding with the business community, and 2) a scathing dissent from one (or more) of the Court’s progressives, including a powerful oral dissent by Justice Ruth Bader Ginsburg accusing the Chief Justice and the Court’s conservative majority of being “blind to the realities of the workplace.”
Given this context (and Justice Kagan’s own blistering dissent in an important arbitration case), it’s perhaps little surprise that Rosen asked Justice Kagan a question that’s been on the minds of many legal commentators throughout John Roberts’s tenure as Chief Justice: “Is this a pro-business Court?”
While Justice Kagan initially hedged, she eventually settled on a stinging—if measured— critique of the Roberts Court’s business jurisprudence: “I think there were a number of cases where the Court made it more difficult for injured persons to come to court and to use federal and state law to hold business to account for injuries that they’ve done.” Justice Kagan’s critique matched similar analyses by various news outlets and legal commentators, which have, in turn, led to new scholarly attempts to quantify the Roberts Court’s pro-business leanings and new political attacks alleging that the Roberts Court is doing the bidding of big business. In the process, the “Corporate Court” story has become one of the defining stories of the Roberts Court.
This snapshot—the latest in our year-long look at the first decade of the Roberts Court—offers Constitutional Accountability Center’s own perspective on the “Corporate Court” story. To be sure, we come to it with our own history. Since 2010, we have tracked the Supreme Court activities of the U.S. Chamber of Commerce and released empirical studies covering our findings. These studies document a sharp increase in the Chamber’s success rate before the Court since both Chief Justice Roberts and Justice Alito were confirmed. These studies show not only that the Chamber now wins the vast majority of its cases each Term, but also documents the existence of a sharp ideological divide on the Roberts Court in favor of the Chamber, with the Court’s conservatives virtually certain to rule in favor of the Chamber in closely decided cases. In this snapshot, we draw upon this data—and our years of experience analyzing the Court’s business cases—to explore the Chief Justice’s individual track record in the Court’s business cases, as well as larger trends on the Court that he leads.
With a number of important business cases already on the docket for next Term, now is an opportune time to look back at the Chief Justice’s track record in this area. Indeed, when the Court reconvenes for its new Term in October, the Chief Justice and his conservative colleagues will return to a number of areas in which they’ve already pushed the law in a probusiness direction, including the rules and procedures that govern class actions (Campbell Ewald v. Gomez and Tyson Foods v. Bouaphakeo) and arbitration (DirecTV v. Imbrugia). They will also take up an important access-to-courts case, which will address Congress’s authority to open up the courthouse doors to plaintiffs accusing companies of violating federal law (Spokeo v. Robins). From the Chamber’s perspective, each of these cases “presents an opportunity to rein in abusive litigation.” For workers and consumers alleging corporate misdeeds, these cases are all about access to justice.
In the end, although sometimes flying under the radar, the Court’s business cases often have far-reaching consequences for the average American. This snapshot seeks to capture the overall magnitude of the Court’s pro-business leanings, the Chief Justice’s role in the larger story, and the effects of the Court’s business cases on individual Americans.