Posted by Jonathan Adler:
Big Business and the Roberts Court - Panel II:
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232740956
The second panel at the Santa Clara Law Review symposium on [1]"Big
Business and the Roberts Court: Explaining the Court's Receptiveness
to Business Interests," featured political scientist J. Mitchell
Pickerill of Washington State University, David Franklin of DePaul
University of Law, and moderated by Tracy George of Vanderbilt Law
School.
Click to show remainder of post
David Franklin opened with the by-now-common refrain that it is still
early to reach any firm conclusions about the Roberts Court. That
said, Franklin suggested that he believes it is fair to characterize
the Roberts Court, thus far, is �business-friendly� � or, at least,
�business-defendant-friendly.� His conclusions are based upon looking
at the 38 cases during the Roberts Court in which the Chamber
participated as an amicus or party at the merits stage. In 28 of these
cases, approximately 73 percent, the side advocated by the Chamber was
victorious. Also notable, among the 38 cases were 12 unanimous wins
and 5 unanimous losses.
The win rate appears to have increased during the Roberts Court.
Looking at the �natural Rehnquist Court� � the period from 1994-2005
during which there was no turnover on the Court � there were 76 cases
in which the Chamber participated on the merits, but the Chamber had a
lower winning rate of just over 60 percent. Thus, for whatever reason,
the Chamber has been more successful before the Court in recent years.
Franklin noted that he Chamber is clearly an active participant before
the Court, and becoming more so, and is the most active private
litigant at the cert stage. Whereas many amicus briefs may be
placeholders and basic signaling devices (such as when the existence
of the brief is itself a signal, apart from its content), Franklin
noted that the Chamber�s briefs tended to be quite legally substantive
(and more so than he expected).
In seeking to explain the apparent pro-business sympathies of the
Court, Franklin offered some tentative suggestions. First, he noted,
the current justices are very �public-law oriented,� with relatively
little collective experience on the private bar. Thus, the justices
may approach business law cases based upon their experience as �public
law� lawyers (judges, government officials, etc.). Among other things,
this may result in a general distaste for the use of litigation as a
regulatory tool. Thus, insofar as most justices may view state tort
law as, primarily, a regulatory mechanism, it could explain many why
many of the justices are sympathetic to some level of federal
preemption (though, of course, viewing state tort law as a source of
"regulatory" requirements with which companies must comply, does not,
in itself, answer the preemption question).
Second, Franklin suggested that the Court, by-and-large, prefers clear
rules to more flexible or malleable standards. This somewhat-formalist
instinct (although resisted by Breyer) could lead the Court to support
business concerns for predictability and stability in the law. And
finally, he suspects that the justices are somewhat nationalist and
have a slight preference for uniformity (perhaps particularly
judicially imposed uniformity) over a potentially messy patchwork of
state laws and regulations.
Mitch Pickerill also took a quantitative approach to the question of
whether the Roberts Court is �pro-business.� His presentation included
lots of data on slides, that I hope I am able to capture in this
summary.
Going to back to the time of the Roberts and Alito nominations,
Pickerill asked what we would have expected from each of these
justices? Given their conservative political orientations, we may have
expected each new justice to be �pro-business� insofar as this is
reflective of a conservative orientation. This is, in fact, what the
available data show. Comparing Roberts and Alito with Rehnquist and
O�Connor in �union activity� and �economic activity� cases, Pickerill
finds that Alito and Roberts are only marginally more �conservative�
or �pro-business� in these areas (noting all the usual caveats about
size of data set, labels, etc.). Yet while the two justices have only
a slightly more conservative orientation than their predecessors
viewed individually, the outcomes of these sorts of cases appear to be
significantly more �conservative� or �pro-business� on the Roberts
Court than on prior Courts, including the Rehnquist Court, and the
percentage of the Court�s docket taken up by these cases appears to
have increased as well. He also noted that within the set of business
cases, the types of business cases considered has changed as well.
Pickerill suggested we might be able to get additional perspective on
the potential trends in the Court by looking to [2]regime theory, and
a focus on political regimes and political time. From this
perspective, Pickerill noted that it is perhaps important that the
Democratic Party, and the Clinton Administration in particular, sought
to neutralize certain issues that (in their view) favored the
Republican Party, such as economic growth and crime. This led to
certain policy priorities, such as deficit reduction and trade
liberalization, as well as a downplaying of ideological considerations
in the selection of Clinton judicial appointments. Thus, Clinton�s
Supreme Court appointments, � Stephen Breyer and Ruth Bader Ginsburg �
are judicial liberals on many issues, but also relatively
�pro-business� compared to other possible nominees. Returning to the
data, Pickerill noted that the Clinton Administration did not
interrupt � and, in fact, actually contributed to � a longer term
trend toward a pro-business orientation. Whether the Obama
Administration will take a different approach -- and cause a "regime
change" -- remains to be seen.
Taking her prerogative as moderator, Tracey George raised a few
questions, including a) whether current economic woes will increase
the salience of business cases on the Court, b) whether it is relevant
to differentiate between �pro-business� decisions in which the Court
upholds �pro-business� legislation and invalidates �anti-business�
legislation, c) whether the shrinking docket should affect analyses of
the Court, and d) whether the increased �professionalization� should
affect analyses of the Court�s approach to business cases.
In response, Franklin suggested that few of the cases involve the
question whether the Court should strike down or uphold a statute, but
how a given statute should be interpreted, and thought it was too soon
to know whether economic concerns will increase the salience of
business cases in the courts. He also noted that whatever the effect
of the professionalization of the judiciary, the increase
professionalization of the Supreme Court bar is likely an important
factor. On the issue of the docket size, Pickerill pointed out that
quantitative examination of the trends has to be balanced with
consideration of individual cases, as the doctrinal and practical
cases of individual cases will vary.
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References
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2. http://volokh.com/archives/archive_2008_06_01-2008_06_07.shtml#1212768959
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