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Just How Business-Friendly is the Supreme Court, Anyhow?

24 July 2013
The National Law Journal

The U.S. Supreme Court term just ended was good for business—but not, percentage-wise, as good as you might think.

The annual Mayer Brown analysis of the high court's business docket shows that in the 25 cases last term that pitted a business against an individual or government agency, business prevailed in 16—a 64 per cent win rate. That compares with 86 per cent rate of victory during the previous term, 48 per cent in 2010 and 62 per cent in 2009.

"This was plainly a good term for business interests," said Mayer Brown partner Lauren Goldman, who prepared the report. "But it is hard to generalize. You can't discern any probusiness bias. They decide each case on its own merits."

Some of the business wins this past term were significant ones, with long-term ramifications— such as the pro-arbitration American Express Co. v. Italian Colors Restaurant and Comcast v. Behrend, a defeat for class actions, as well as two pro-employer workplace discrimination cases, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar. (Even though both sides in the American Express case were businesses, it was included in the tally because most business groups were on one side.)

But some of the losses stung too, including FTC v. Actavis, which strengthened the hand of the Federal Trade Commission in investigating anticompetitive dealings in the pharmaceutical industry, and City of Arlington v. FCC, a win for deference to regulatory agencies.

Bolstering her view that the court is not ideologically slanted toward business, Goldman noted that many of the business decisions were unanimous or nearly so, and some were written by justices viewed as liberal. Justice Elena Kagan wrote the 9-0 decision in Bowman v. Monsanto, upholding seed patents, and Justice Stephen Breyer wrote for a unanimous court to restrict class actions in Standard Fire Insurance v. Knowles.

She also asserted that many of the business cases last term did not break ground, instead building on established precedents. American Express was a sequel to AT&T v. Concepcion, Goldman noted, and the Comcast ruling was a follow-up to Wal-Mart v. Dukes. And despite criticism from consumer groups and the plaintiffs’ bar, Goldman said the pro-business rulings won't prevent plaintiffs from pursuing meritorious claims against business. Commentators often say the court's rulings "close the courthouse doors" to plaintiffs, she said, but in fact the court is "just enforcing the rules and precedents.When plaintiffs seek to circumvent the rules, they will be rebuffed."

The liberal Constitutional Accountability Center, which has criticized what it sees as the court's pro-business slant, took a dim view of Mayer Brown's tally. Using a different filter—the win-loss record for cases in which the U.S. Chamber of Commerce participated—the center came up with an 82 per cent win rate for business. It viewed the corporate wins as one of the “big stories” of last term.

"Mayer Brown’s report tries to argue that there is nothing to see here in the court’s business cases, but the facts belie this argument," center president Doug Kendall said. "By our count, eight important business cases this term divided the Justices along traditional ideological lines, and big business won—and individuals and small businesses lost—every one of these cases."

Among them were the two employment discrimination cases and several others issued in the final weeks of the court term. Kendall added, "While it’s true that these rulings build upon prior similarly controversial rulings, term by term, they collectively move the law sharply in a business-friendly direction, often over blistering dissents by the Court’s progressive justices.”

Reprinted with permission from the July 24, 2013 edition of National Law Journal © 2013 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. 

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