Monday, September 27, 2010

Judging Roberts: A Wide Strike Zone for Business

     Chief Justice John G. Roberts Jr., former Reagan and Bush I administration lawyer and former corporate attorney, won Senate confirmation in 2005 after promising that he had no “agenda” for the Supreme Court. But five years later, no one should be surprised that Roberts and the court he leads have regularly favored business interests in the legal issues that business counts as high priorities.
     Numbers help tell the story. Among 53 cases over the past five years where the U.S. Chamber of Commerce has participated, Roberts voted for the Chamber’s position 70 percent of the time, according to an analysis by the consumer-oriented Constitutional Accountability Center. In the 17 closely divided cases, Roberts batted 90 percent for business. By way of comparison, the four liberal justices (Stevens, Souter, Ginsburg, and Breyer) voted for the Chamber in the mid-30 to mid-40 percent range; Sotomayor was slightly lower, but with a small sample in her single term.
     Roberts’ votes have helped give business victories in such areas as preemption, arbitration, securities fraud, and civil litigation. Business interests use preemption to rein in states that have more consumer-friendly state law or regulations than the federal government. They want courts to enforce take-it-or-leave-it arbitration contracts to force workers or consumers into a stacked dispute-resolution system and shut them out of courts. And business has worked tirelessly for decades to try to limit the ability of investors to recover for losses due to securities fraud or for consumers to be fully compensated for injuries from unsafe products.
     In contrast to the overturned precedents discussed here last week [“Judging Roberts: Riding Roughshod Over Precedent”], Roberts and fellow Bush appointee Samuel A. Alito Jr. have not changed, but only fortified, the court’s orientation on these issues. “The Rehnquist Court was quite a good forum for business,” Maureen Mahoney, a corporate lawyer and former clerk to Chief Justice William H. Rehnquist, remarked at the end of Roberts’ second year as chief justice. “The Roberts Court is even better.”
     Preemption cases remain somewhat hard to predict. Truckers and medical device manufacturers won preemption cases, but the court in 2008 rejected efforts by drug makers and tobacco companies to escape state court suits for inadequate warnings about their products. Roberts, however, has been consistent. With one exception in his first term, Roberts has always backed federal preemption, whether in the majority or in dissent.
     On arbitration, the Roberts Court has continued the general pattern of rejecting efforts by workers or consumers to escape arbitration clauses in employment or purchase contracts. Some rulings have been by lopsided margins, but two significant decisions in 2010 came on 5-4 votes that pitted the Roberts-led conservatives against the liberal bloc.
     The Rehnquist Court dealt investors a blow in 1994 by rejecting any “aiding and abetting” liability for securities fraud; the 5-4 ruling blocked a suit against a bank that had, unknowingly, helped further the fraudulent conduct. The Roberts Court took that ruling one step further in 2008 by freeing a company from securities fraud liability even if it had knowingly participated in the misconduct. The 5-3 vote was mostly along ideological lines; Alito was recused.
     The Roberts Court has been somewhat more generous in interpreting federal job discrimination laws. In particular, it has actually widened protection for employees claiming retaliation for complaining about alleged discrimination. But one major ruling in 2009 made age-discrimination suits much more difficult to win. And the famous Ledbetter ruling in 2007 would have narrowed employers’ liability for pay discrimination but for the law Congress passed to overturn it.
     Roberts pledged in the confirmation hearing that he would just call balls and strikes and let the political branches decide the rules of the game. But he dissented in 2007 when the liberals plus Kennedy read the Clean Air Act to require the Environmental Protection Agency to regulate “greenhouse gases.” And when Congress required the EPA to use the “best technology” available to “minimize” fish kills at electric power plants, Roberts joined the majority decision in 2009 to allow the agency to retreat from that standard by adopting a cost-benefit analysis. The decision could have saved electric utilities billions but for the Obama administration’s reversal of the Bush administration rule.
     One big company that did save billions thanks to a Roberts Court decision is Exxon, which won a 5-3 decision in 2008 cutting a $2.5 billion punitive damage award for the Exxon Valdez oil spill by more than 80 percent to $500 million. Here, the Roberts Court itself defined the strike zone by using its power over federal maritime law to impose a 1-to-1 ratio of punitive to compensatory damages. True, the liberal Souter wrote the decision, but Roberts and three fellow conservatives provided the other votes.
     The Chamber of Commerce prevailed in 64 percent of the cases counted by the Constitutional Accountability Center: not a bad batting average. That number includes the business community’s biggest win: the Citizens United decision in January freeing corporations to spend unlimited sums in political campaigns. After five Roberts Court years, Mahoney remains a fan. The Supreme Court, she told the Chamber of Commerce-sponsored preview of the coming term, is “the best court” in the country for getting what she called “a fair hearing” on business-related issues.

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