In search of the 'pro-business' court

|The Volokh Conspiracy |

Has the Roberts Court been a pro-business court? Many commentators think so, but (as I've blogged many times before) I am not so sure. My new book, "Business and the Roberts Court" (that I previewed here), provides a critical perspective on the "Roberts Court is pro-business?" thesis, and suggests answering the question requires doing more than simply tallying business wins and losses or focusing on a small handful of cases.

Here's how I answer the question "Is the Roberts Court pro-business?" at the close of the book's introduction:

Is it fair to call the Roberts Court "pro-business"? Looking at the broader pattern of cases, there is little evidence that the Court, or any of the justices, are motivated by a desire to help business, as such. There have been too many Roberts Court decisions in which the business community generally, and big business in particular, has lost big to support such a claim. But there are many justices on the Court who have doctrinal or jurisprudential commitments, such as a suspicion of policy-making through litigation, that often work to the business community's advantage. So while there is little evidence the Court seeks to help business, as such, there are aspects of the Court's dominant jurisprudence that work to the advantage of business interests.

To the extent the Roberts Court is pro-business, it is so not because it has embraced an aggressive agenda to impose constitutional constraints on the government's power to regulate economic activity or to rewrite the law to favor business interests. Rather, the Roberts Court can be called "pro-business" insofar as it is sympathetic to some basic business oriented legal claims, reads statutes narrowly, resists finding implied causes of action, has adopted a skeptical view of antitrust complaints, and does not place its finger on the scales to assist non-business litigants. This approach is highly deferential to the political branches, particularly the legislature, and will produce "pro-business" results only insofar as the other branches adopt or maintain relatively business-friendly postures. With a more interventionist Congress or less sympathetic Solicitor General's office, this approach might not be "pro-business" at all.

Where business interests seek outcomes that are in line with the justices' doctrinal commitments, they can expect to prevail. Yet where business interests are unable to marshal arguments that appeal to the justices' underlying judicial philosophies, their odds are less favorable, no matter how much business groups may believe is at stake. So rather than say this is a Court that is "pro-business," it is more accurate to say that this is a Court that business likes—except when it doesn't. Whether or not one concurs with this assessment, this volume should make clear that the Court's tendencies in business-related cases are not easily reduced to a hashtag slogan.

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The book contains chapters by 10 different authors, and I don't claim that every chapter author necessarily shares my assessment. Each author is well regarded in their field, and I think each of their assessments is worthy of serious consideration. Here's my summary of the various contributions to the book, taken from the introduction:

Since John Roberts was confirmed as the seventeenth Chief Justice in 2005, the Court has handed the business community its share of victories, but it has also handed business groups substantial losses. While raising the formal bar for filing many lawsuits, upholding broad arbitration clauses, and rejecting new avenues of class-action litigation against large corporations, the Court has also refused to preempt litigation against drug makers or block state immigration laws penalizing businesses that hire undocumented workers, and unleashed the federal regulation of greenhouse gases by the U.S. Environmental Protection Agency. These are hardly outcomes favored by big business.

Evaluating whether this is a pro-business record requires more careful analysis than simply tallying the cases or looking to see whether a business group was involved. It is necessary to step beyond the easy label and think carefully about what it means to say a court is "pro-business" and unpack the consequences such an orientation may have. Quantitative analyses have their place, but a complete picture requires careful qualitative assessments as well.

Several empirical studies suggest the Roberts Court is particularly pro-business, perhaps even more than a simple consideration of expected judicial ideology would predict. Is this so? In chapter one, Bradley Joondeph provides an empirical analysis of the Roberts Court's decisions in business-related cases exploring whether there is an identifiable "pro-business" trend, controlling for other potential influences, such as participation of the Solicitor General. While business groups seem to do well before the justices, the question is compared to what? As Joondeph notes, the Solicitor General performs well before the Supreme Court too, and the SG and business groups are often on the same side. The U.S. Chamber of Commerce has a winning record in the High Court, as one might expect of any high-powered, repeat litigant, but the advantage does not appear to be all that great, at least not across the board.

Any empirical evaluation of the Supreme Court's general tendencies must account for baselines in the law, as well as in judicial behavior. In chapter two, political scientist J. Mitchell Pickerill points out that when asking whether the Roberts Court is "pro-business" we must also consider what we would expect from this, or any court. Republican Presidents nominated a majority of the current court, and the Republican Party is, on the whole, seen as more sympathetic to business interests than is the Democratic Party. For this reason, one would expect the current court to be somewhat more sympathetic to many sorts of business claims than a court with a majority of justices appointed by Democratic presidents would be. Insofar as the Roberts Court is "pro-business," in the ways discussed above, this may be an inevitable result of the political process. As has often been said, the Supreme Court follows the election returns.

External factors may affect how the Supreme Court approaches individual cases, and it may even affect what cases the Court agrees to accept. In chapter three Richard Lazarus documents the effect of the emergence of an elite Supreme Court bar on case selection and outcomes at the Supreme Court, including the recent increase in business-related cases. The Court grants the petitions filed by the expert members of the Bar at a significantly higher rate and these experts also prevail on the merits more frequently. Insofar as the business interests who serve as the Bar's primary clients are enjoying heightened success before the Court, this is partially a result of the increased specialization within and effectiveness of the Supreme Court Bar.

Few areas of law are more important to large corporations than securities law. In chapter four, Adam Pritchard concludes there is little evidence of a pro-business bias. Indeed, Pritchard suggests there is little evidence the Supreme Court cares much about securities law at all. While the first several years of the Roberts Court saw an increase in the number of securities law cases, Pritchard finds nothing in the Court's opinions suggesting that the justices are all that interested in the substance of the securities laws or the policies that animate them. Instead, securities law serves as a backdrop for debates over statutory interpretation, the use of legislative history, and the relationship of the judiciary to the administrative state.

If the Roberts Court is not particularly interested in securities law, as such, it does appear to be interested in curbing what some see as excessive litigation—or at least reducing the costs of litigation on defendants. While not always seen as "business" cases, the Twombly and Iqbal decisions are among the most important decisions yet issued by the Roberts Court, because they set the federal pleading standards needed to survive a motion to dismiss and gain access to discovery from defendants. Contrary to the prevailing wisdom, however, Brian Fitzpatrick argues in chapter five that these decisions have not radically and unduly altered the rules of civil litigation through judicial fiat so much as they have updated federal pleading rules to account for technological and other changes that increase the costs of litigation. Yet even if not a radical change, these decisions suggest the Court is sensitive to the costs of litigation for corporate defendants, including the costs of discovery.

A concern for the costs of litigation may also be found in the Roberts Court's antitrust jurisprudence, which builds upon the Chicago-influenced antitrust jurisprudence of the past few decades. As Thom Lambert argues in chapter six, the Court has shown a greater willingness to use antitrust to police horizontal restraints of trade than vertical restraints or unilateral conduct. It has also insisted that antitrust should police only anticompetitive harm, which does not include mere price discrimination. This is all consistent with the dominant Chicago view of antitrust. At the same time, the Court has pulled away from some of Chicago's more extreme views, acknowledging that various practices that were fully acquitted by the Chicago School may, in fact, injure consumers and cause anticompetitive harm. The common thread running through the Court's decisions and ultimately pulling its holdings in the direction of Chicago is a concern about error costs—a desire to minimize the sum of social losses from false positives and false negatives.

The Court has not been nearly as consistent in the context of federal preemption, or so it may at first appear. After a streak of pro-preemption decisions in 2007 and 2008, the Roberts Court delivered three strong anti-preemption decisions in the following term, challenging the idea that the Court would automatically defend business from disuniform state laws. According to Roderick Hills in chapter seven, preemption decisions force the Court's conservative majority to confront an internal conflict within modern American conservatism—namely, the tension between suspicion of bureaucratic expertise and suspicion of anti-corporate populism. The tension between these strands of conservatism might explain the Court's unsteady path on preemption decisions better than any claims of a pro-business bias.

No case concerning corporations has attracted more attention or prompted more debate than Citizens United v. Federal Election Commission. This case, above all others, is pointed to as Exhibit A when analysts charge the Roberts Court with a pro-business bias, even if large, for-profit corporations are not particularly large sources of campaign contributions. In chapter eight, Joel Gora challenges this narrative, suggesting that Citizens United is best understood as a case about speech, rather than a case about corporations. Viewed in the context of the Roberts Court's relatively expansive First Amendment jurisprudence, the decision is not much of an outlier or a surprise.

Labor and employment law evinces a pattern of relative hostility to litigation-driven policy-making—a hostility seen in other legal areas such as securities law. As Matthew Bodie observes in chapter nine, the rise of human resources departments parallels the increase in workplace governance through myriad statutory and regulatory requirements. The Supreme Court's decisions in labor and employment law cases are largely monitored and implemented at the private level by these inter- and intra-firm bureaucracies. In its shaping of labor and employment law, the Roberts Court reflects a willingness to delegate greater powers of implementation to these private institutional players. This delegation will be highlighted in cases involving anti-discrimination protections, ERISA, and arbitration.

Environmental law reveals a slightly similar pattern. Quantitatively, business interests prevail more often than not when environmental law questions are before the Supreme Court. As a qualitative matter, however, the Roberts Court has not offered the business community much relief from the cost or scope of environmental regulation. As I discuss in chapter ten, the federal government prevails in environmental law cases just about as often as business groups do, and some cases (such as Massachusetts v. EPA) have unleashed substantial regulatory initiatives. While not overtly hostile to environmental regulation, the justices are hesitant to expand corporate liability for environmental harms or green light new avenues of litigation. This is consistent with the Court's revealed pattern in other contexts. A few cases also suggest some justices have a soft spot for small landowners, if not for larger regulated firms.

Taken together, I think these chapters shed substantial light on the underlying question. Of course, it's also important to remember that the Roberts Court is still a work in progress. The replacement of Justice Scalia will influence the Court (as I discussed here), as will subsequent appointments. In the meantime, my hope is that this book helps us understand the Roberts Court a little bit better than we did before.

Also, for those who are interested, these issues will be discussed further at the Sept. 23 conference on Business in the Roberts Court at Case Western Reserve's law school.

And don't forget, "Business and the Roberts Court" is available on Amazon.