The Building Tradesman Newspaper

Friday, July 12, 2013

Rulings show businesses enjoy stacked deck before Supreme Court

By The Building Tradesman

The same-sex marriage and voting rights act debates have dominated the news from the U.S. Supreme Court in recent weeks – but there’s much more going on up their black-robed sleeves.

A new study by the Minnesota Law Review reveals that the rulings in the past few years by the nation’s highest court make it the most business-friendly since World War II. The study looked at 2,000 Supreme Court decisions from 1946 to 2011, ranking 36 justices who served over those 65 years. And two justices at the top of the list of those most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr.

“In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes,” says a related article by the New York Times. “Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.”

What it means for the nation’s workers is that lawsuits which allow class actions, or involve personal injury cases establishing employer liability, or cases which pit unions vs. employers, are much more likely to enter the Supreme Court’s chambers with an immediate, ideological conservative strike against it.

The Minnesota Law Review study said today’s Roberts Court is “much friendlier to business than either the Burger orRehnquist Courts, which preceded it, were. The Court is taking more cases in which the business litigant lost in the lower court and reversing more of these – giving rise to the paradox that a decision in which certiorari (review of a lower court’s decision) is granted when the lower court decision was anti-business is more likely to be reversed than one in which the lower court decision was pro-business.”

In April, Adam Chandler of the Supreme Court of the United States Blog found that among the top 16 organizations that file high court amicus briefs – or informational briefs for cases it is not involved in – “The U.S. Chamber of Commerce’s continued dominance is immediately apparent. Not only did the Chamber once again file the most briefs, but it had the second-highest success rate of the Sweet Sixteen.”

He concluded: “My data indicate that, as the Court shapes its docket, it hears conservative voices far more often than liberal ones, and the disparity is growing.”

The Minnesota Law Review study, published last month, ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes. All five of the current court’s more conservative members were in the top 10.

“Just last week, the court ruled in favor of American Express in a case that will make it harder for consumers to hold corporations accountable,” said Sen Elizabeth Warren (D-Mass.) earlier this year. “Today, another decision makes it harder for those who experience horrific side effects from medications to sue drug companies. Follow this pro-business trend to its logical conclusion, and sooner or later you'll end up with a Supreme Court that functions as a wholly owned subsidiary of the Chamber of Commerce.”

A major pending case involving the ability of unions to organize will further display the high court’s view of business vs. labor. In late June, the Supreme Court announced that it would take up a case involving labor-management “neutrality” agreements between unions and employers. Under such agreements, management agrees to remain neutral during a union organizing drive, and both sides agree to refrain from harsh and divisive tactics and allow workers to choose union representation, or not, free of intimidation. They are essential to labor’s success in many union organizing drives.