March 15, 2008
Jeffrey Rosen on Business Cases Before the Supreme Court
Posted by Gordon Smith

Jeffrey Rosen has turned his attention to the Supreme Court's business docket. Looking at business cases from last term, Rosen sees "surprising" unity among the Justices: 22 of 30 (73.3%) business cases were decided unanimously or with only one or two dissenting votes. And most of these cases favored "business interests," though it's not always clear to me which outcome would be so classified.

How do business cases compare with other cases? Of the 69 cases on which the justices voted during the 2006 Term, 41 (59.4%) were decided unanimously or with only one or two dissenting votes. So the justices exhibit a stronger tendency to agree on business cases than on their overall docket, of which business cases are a substantial part. And assuming the accuracy of Rosen's numbers, the justices are much more united on business cases than on non-business cases (19/39 or 48.7%).

Is this surprising? Rosen contends that the surprising part is that even the liberal wing of the Court sides with the business interests:

In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as "regulation by litigation." [Robin Conrad, who heads the litigation effort at the U.S. Chamber of Commerce,] reeled off some of her favorite moments: "Justice Ginsburg talked about how 'private-securities fraud actions, if not adequately contained, can be employed abusively.' Justice Breyer had a wonderful quote about how Congress was trying to 'weed out unmeritorious securities lawsuits.' Justice Souter talked about how the threat of litigation 'will push cost-conscious defendants to settle.' "

According to Rosen, these examples -- including two from the same case (Tellabs) -- "point to an ideological sea change on the Supreme Court." Rosen wonders: "What should we make of the Supreme Court's transformation?" Rosen's hypothesis:

With their pro-business jurisprudence, the justices may be capturing an emerging spirit of agreement among liberal and conservative elites about the value of free markets. Among the professional classes, many Democrats and Republicans, whatever their other disagreements, have come to share a relatively laissez-faire, technocratic vision of the economy and are suspicious of excessive regulation and reflexive efforts to vilify big business. Judges, lawyers and law professors (such as myself) drilled in cost-benefit analysis over the past three decades, are no exception. It should come as little surprise that John Roberts and Stephen Breyer, both of whom studied the economic analysis of law at Harvard, have similar instincts in business cases.

Rosen dates the supposed transformation of the Court to the nomination of Lewis Powell in 1971, and reserves a special place in the story for Rex Lee, founding dean of BYU's Law School:

Until the mid-'80s, there wasn’t an organized group of law firms that specialized in arguing business cases before the Supreme Court. But in 1985, Rex Lee, the solicitor general under Reagan, left the government to start a Supreme Court appellate practice at the firm Sidley Austin. Lee’s goal was to offer business clients the same level of expert representation before the Supreme Court that the solicitor general’s office provides to federal agencies. Lee's success prompted other law firms to hire former Supreme Court clerks and former members of the solicitor general’s office to start business practices. The Chamber of Commerce, for its part, began to coordinate the strategy of these lawyers in the most important business cases.

All of this makes for fascinating reading. Especially the part where Ralph Nader "all but conceded defeat in the battle for the Supreme Court." You really need to read the whole thing.

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