Still in search of the pro-business court.

• Author: Adler, Jonathan H.
• Position: Symposium: Business in the Roberts Court

It was not long after Chief Justice John Roberts and Associate Justice Samuel Alito joined the Supreme Court before journalists and legal commentators declared that the Roberts Court had a soft spot for business. '"Business Reigns Supreme," the Washington Post's editorial page declared at the close of the first full term after both justices were confirmed. (1) "Much of corporate America was crowing last week after the Supreme Court ended a term notable for a string of rulings that generally favored businesses over consumers, employees, plaintiffs and investors," the Post explained. (2) Other commentators made similar observations. (3)

The fullest explication of the pro-business Court hypothesis was presented by Jeffery Rosen in a lengthy article for The New York Times Magazine, "Supreme Court, Inc." (4) "[E]ver since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns," Rosen argued. (5) Among other things, the Court had begun to accept more business-related cases as a percentage of its docket, (6) a trend only made more conspicuous by the Court's ever-shrinking docket. (7) Moreover, the Court seemed "surprisingly united in cases affecting business interests." (8)

Initial claims of a pro-business Court were largely based upon the Court's pattern of decisions and the notable success rate of the U.S. Chamber of Commerce, which has become an increasingly active amicus. In the 2006-07 term, for example, the Chamber of Commerce's preferred side prevailed in thirteen of the fifteen cases in which it submitted a brief. (9) While the Chamber has not sustained this level of success before the Court in subsequent terms, it nonetheless has an enviable success rate. (10)

The Chamber's court record is suggestive, but does it demonstrate that the Roberts Court lias a soft spot for business? Perhaps, but perhaps not. The Chamber regularly files amicus briefs in cases of major importance to the business community, but it does not file in every such case. The Chamber's decision to file may be based upon a case's importance, but it might also be based upon the likelihood of victory. The higher the Chamber's success rate, the more valuable the Chamber's efforts may appear to its members. Notably the Chamber stayed its hand in some significant cases--cases in which the side favored by most business interests lost. Examples of such cases would include Kasten v. Saint-Gobain Performance Plastics Corp., (11) a Fair Labor Standards Act case in which the Court sided against the employer, and United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, (12) in which the Court rejected a Dormant Commerce Clause challenge to a local solid waste flow control plan opposed byother business groups. (13)

Focusing on a single interest group in order to determine whether the Court--or a given case outcome--is pro-business can also be problematic because business interests often lie on both sides of a case. Most antitrust cases, for example, pit one corporation against another, as do many other business law cases. Even cases in which one might think the business interest is abundantly clear may pit different business groups against each other. The lead plaintiff in the constitutional challenge to the Patient Protection and Affordable Care Act was the National Federation of Independent Business (NFIB). (14) Yet it is well accepted that many business groups, including hospitals and insurance companies, benefitted from the statutory provisions NFIB sought to challenge. The Chamber of Commerce and numerous industry groups opposed claims that the Clean Air Act authorized regulation of greenhouse gas emissions in Massachusetts v. EPA, yet businesses that stood to benefit from such regulation took the other side. (15)

Accepting that the pro-business label may be problematic in some cases, it is often possible to identify which side in a given legal dispute is aligned with the prevailing interests of the business community. So, for example, whether the Court's decision will generally inure to the benefit of employers over employees, manufacturers over consumers, regulated industries over government agencies, and the like, may serve as useful proxies for whether a given outcome may be fairly characterized as "pro-business."

Quantitative studies have been generally supportive of the claim that the Roberts Court is at least somewhat more supportive of business than prior courts. (16) The most comprehensive such study, by Lee Epstein, William Landes, and Judge Richard Posner, purported to show that the Roberts Court has been far more sympathetic to business concerns than has any Court of the past sixty to seventy years. (17) This conclusion was based upon looking at the rate at which businesses prevailed in cases against individuals, interest groups, and governments. (18) Using this methodology, the authors found that businesses prevail more often in the Roberts Court than in any of its post-war predecessors. (19)

Quantitative studies, such as that conducted by Epstein, Landes, and Posner, have their value, but they also have their limitations. One particular concern is that quantitative assessments fail to account for the substance of the decisions, and do not differentiate between ordinary cases and those with major ramifications. Nor do such analyses typically account for whether a given case marks a departure from prior precedent or paves new ground, nor do they consider the broader context in which a case occurs.

Failure to account for the content of the decisions and doctrinal baseline means that a quantitative analysis may find a "pro-business" trend when analyzing decisions that, when taken together, actually shift the law in a less business-friendly position. The Roberts Court's three climate change cases provide a simple example of this result. In Massachusetts v. EPA, (20) the Court decided 5-4 that states could sue the federal government for failing to take action to curb global warming, and that the Clean Air Act authorized the Environmental Protection Agency to regulate greenhouse gases as "air pollutants" under the Clean Air Act. (21) In American Electric Power v. Connecticut (22) the Court decided 8-0 that (due to the Massachusetts decision) the Clean Air Act displaced nuisance actions against greenhouse gas emitters under the federal common law of interstate nuisance. (23) Finally, in Utility Air Regulatory Group v. EPA, (24) the Court largely affirmed the EPA's authority to regulate greenhouse gas emissions from large emitters, subject to some limitations, splitting 7-2 and 5-4 on different issues. (25)

From a business perspective, the three climate cases are best scored as a win (American Electric), a loss (Massachusetts), and tie (UARG), with the "pro-business" positions attracting a slight majority of the available votes in these cases. Thus, as a quantitative matter, it appears that business has fought climate regulation to a draw in the Supreme Court. The reality on the ground, however, is quite different.

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