Posted by Jonathan Adler:
Symposium on "Big Business and the Roberts Court":
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232678373
Tomorrow I will be participating in the Santa Clara Law Review
symposium on [1]"Big Business and the Roberts Court: Explaining the
Court's Receptiveness to Business Interests." Jeffrey Rosen, whose NYT
magazine article [2]"Supreme Court, Inc." no doubt helped inspire the
conference, will deliver the keynote address tomorrow afternoon. (We
discussed Rosen's article on the VC [3]here.) [4]Additional speakers
include litigators and academics including Tracey George (Vanderbilt),
Pam Karlan (Stanford), and Vikram Amar (UC Davis), among others.
In my remarks I will raise questions about what it means to say that
the Roberts Court is substantively "pro-business," and take a closer
look at the various environmental cases decided by the Roberts Court.
If the Court is meaningfully pro-business, one might expect that the
Court would be hostile to environmental regulation or at least
sympathetic to business challenges to regulatory measures. Yet no such
tendency is visible in the environmental decisions rendered by the
Roberts Court thus far. If there is evidence that the Roberts Court is
"pro-business," the evidence must be found elsewhere.
I addressed the broader claim that the Roberts Court is pro-business
in Part III of [5]my response to Erwin Chemerinsky's [6]article on the
first three years of the Roberts Court. Chemerinsky argued that the
Roberts Court has shown itself to be particularly pro-business, and
here is a portion of my response.
Dean Chemerinsky is likely correct that, in important respects, the
Roberts Court could be seen as �pro-business.� But this is not
because the Court has been particularly aggressive in striking down
government regulation or erecting constitutional barriers to
economic regulation. This is no pre-New Deal Court. Nor is the
Court�s apparent solicitude for business concerns particularly
rigid or ideological. To the contrary, the results in most business
law cases are quite lopsided, and rarely the result of an
ideological division on the Court. In this area, 5-4 cases are the
exception, not the rule. . . .
Business-related cases appear to occupy a major share of the
Roberts Court�s shrunken docket � over one-third of the cases
accepted and argued in each of the past three terms. It also
appears that business advocates have had a relatively successful
run of late. In OT 2006, for example, the litigation arm of the
U.S. Chamber of Commerce filed briefs in fifteen cases, winning
thirteen. This may be evidence that the business community has
tremendous influence on the Court. Or it may indicate that its
attorneys are particularly good at picking winners and marshaling
the organization�s resources for those cases in which it can have
the greatest impact.
Some call the Court �pro-business� because there is no crusading
liberal or �progressive� justice on the Court. There is no justice
ready to follow William O. Douglas� counsel to �bend the law in
favor of the environment and against the corporations.� But this,
in itself, does not make the Court pro-business, particularly as
there are no justices on the Court ready to do the opposite.
Rather, most justices appear to approach the majority of business
law cases as legal questions deserving of careful legal analysis
and resolution in accordance with the dictates of law. With the
exception of the punitive damages cases, the Court�s business
docket focuses on statutory matters in which Congress retains the
upper hand. Most cases require the Court to interpret or apply and
enforce legislative accommodations, and leave Congress ample room
to correct course. . . .
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.
I look forward to tomorrow's conference and (time-permitting) hope to
blog some highlights.
References
1. http://law.scu.edu/lawreview/symposium.cfm
2.
http://www.nytimes.com/2008/03/16/magazine/16supreme-t.html?ei=5124&en=d190df9f4b5bdc61&ex=1363492800&partner=permalink&exprod=permalink&pagewanted=all
3. http://volokh.com/posts/chain_1205805605.shtml
4. http://law.scu.edu/lawreview/2009-symposium-speaker-biographies.cfm
5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1307177
6. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1280276
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