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A strong Supreme Court term for business

1 August 2012
The National Law Journal
By Tony Mauro

Lost in the glare of the Supreme Court's landmark decisions in June was the fact that the business community did very well last term.

A tally by Mayer Brown of the 25 business-related cases the court decided last term shows that the business side won 19 times and lost only three. In the remaining three cases – including the Affordable Care Act decision – business interests were represented on both sides.

But Mayer Brown partner Lauren Goldman, who prepares the end-of-term report annually, is quick to add that while the results may seem lopsided, they are not the result of an "ideology-driven" bias toward business. Instead, most were relatively easy cases decided unanimously or nearly so. Eleven were unanimous and three were decided by 8-1 margins. And some decisions, she pointed out, were written by justices from the liberal wing of the court.

"A lot of the cases were quite narrow," Goldman said, noting that in the area of pre-emption, a big issue for business in recent years, the Court's pro-business decisions last term involved "slaughterhouses and cleaning locomotives." Those rulings were National Meat Association v. Harris and Kurns v. Railroad Friction Products. The Mayer Brown analysis did not include bankruptcy cases or disputes between two businesses.

Goldman's advice to clients is that the current court provides a "fair climate" for business, but not based on ideology. "This term they were applying precedents in fairly predictable ways, and predictability and stability are things the business community appreciates."

None of the term's business cases was a blockbuster of the magnitude of the previous term's Wal-Mart v. Dukes, Goldman added, but several will be important for the future. She pointed to Christopher v. SmithKline Beecham, decided June 18. It accepted the pharmaceutical industry's view that its sales representatives should be viewed as "outside salesmen" under the Fair Labor Standards Act.

But former solicitor general Paul Clement, who won the case, said at a National Chamber Litigation Center (NCLC) briefing in late June that the ruling will be a "very important precedent" in a range of future battles over federal regulation of business. That's because in the Christopher ruling, the court gave no deference to the Labor Department's interpretation of its own regulations on the issue. Written by Justice Samuel Alito Jr., the 5-4 majority opinion is full of language that will be fodder for litigators challenging federal regulations. Sackett v. EPA, a Clean Water Act case, was also a significant win for opponents of federal regulation.

The NCLC, the litigation arm of the U.S. Chamber of Commerce, counted eight wins in the 13 cases last term in which it filed amicus briefs. In four of the other cases, the court did not reach the issue that the NCLC briefed, and in the 13th case, the Chamber did not take a side.

That adds up to a perfect winning record for the Chamber, yet another sign of the pro-business slant of the Roberts Court, in the view of the liberal Constitutional Accountability Center. "The October 2011 Term yet again demonstrates the roaring success the U.S. Chamber of Commerce has had before the conservative Justices on the Roberts Court," said Neil Weare, litigation counsel and Supreme Court fellow at the Center. The center has also spotlighted Chief Justice John Roberts Jr. and Justice Alito as the Chamber's strongest allies on the court.

Since the beginning of the Roberts Court in 2005, according to the center, the court has sided with Chamber positions 68 percent of the time.

A new development this past term was the inability of the Obama administration to carry the day when it and the Chamber were on opposite sides in a case. "Last term represented a troubling trend, with the Roberts Court supporting the U.S. Chamber's views over the views of the Solicitor General in every case where their positions diverged," said Weare. "This stands out against the record during the Bush Administration, when the Chamber typically lost when it opposed the views of the Solicitor General."

This losing trend last term for the solicitor general in business and non-business cases led UCLA law professor Adam Winkler to write in a recent column, "This is the year of the Supreme Court's Obama smack down." Winkler said in a Huffington Post column, "This is not a liberty-loving Court. It is an anti-Obama Court."

Reprinted with permission from the August 1, 2012 edition of National Law Journal © 2012 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

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