The Supreme Court and Business – SAGE Business Researcher

Does the Roberts Court favor corporate interests?

Executive Summary

While Supreme Court cases on social issues such as abortion or same-sex rights generate fierce emotion and high visibility, a much larger proportion of the cases before the court are business-related. The decisions in these disputes can affect a broad array of interests and exert a strong influence on the U.S. economy. Recent rulings have involved the reach of antitrust laws, definitions of copyright and patent rights, the spread of sports gambling and corporate political contributions. In its current term, the court will rule on cases dealing with the latitude of government regulators in interpreting congressional mandates, the legal responsibilities of e-retailers and the validity of arbitration clauses for independent contractors.

Some key takeaways:

The Supreme Court grants full review to only about 80 of the more than 7,000 petitions it receives annually.
Some legal experts believe the court’s rulings have been friendlier to business interests since John Roberts became chief justice in 2005, although there is debate about what is behind this trend.
President Trump’s appointees to the high court, Neil Gorsuch and Brett Kavanaugh, are expected to reinforce the pro-business trend, based on their records as appeals court judges.

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Resources for Further Study

Bibliography

Books

Adler, Jonathan H., ed., “Business and the Roberts Court,” Oxford University Press, 2016. Legal academics examine a variety of issues regarding the Supreme Court’s approach to business cases under Chief Justice John Roberts.

Greenfield, Kent, “Corporations Are People Too (And They Should Act Like It),” Yale University Press, 2018. A law professor examines the impact of the landmark Citizens United campaign finance case and the advent of what is known as “corporate personhood,” arguing that new rules are necessary that would require businesses to act more like citizens.

Articles

“The Supreme Court’s Banner Year,” The Wall Street Journal, June 27, 2018, http://tinyurl.com/y8gucm4n. The newspaper’s editorial board commends the court for its 2017-2018 term, including its decision in Janus v. AFSCME barring public-sector unions from charging workers who are not members “agency fees,” along with other opinions that the board argues support free markets.

Adler, Jonathan H., “In search of the ‘pro-business’ court,” The Washington Post, Sept. 22, 2016, http://tinyurl.com/y7obul9l. A law professor argues that the Supreme Court is not necessarily pro-business; instead, many business cases happen to align with how the current court views jurisprudence broadly, leading to an occasional trend in favor of corporations.

Dlouhy, Jennifer A., et al., “Kavanaugh Could Usher In Even More Business-Friendly Era on Supreme Court,” Bloomberg, July 10, 2018, http://tinyurl.com/yaxzd666. Journalists examine Justice Brett Kavanaugh’s history on the D.C. Circuit Court and how his prior decisions could foreshadow his role on the high court, including on the issue of how much deference to grant government regulators.

Posner, Eric, “The Far-Reaching Threats of a Conservative Court,” The New York Times, Oct. 23, 2018, http://tinyurl.com/y7l83uqs. A law professor argues that a more conservative Supreme Court could roll back New Deal protections by restraining the power of federal agencies.

Wells, Nick, and Mark Fahey, “The US Supreme Court is more friendly to businesses than any time since World War II,” CNBC, March 1, 2017, http://tinyurl.com/y7ooa4k2. A review of an updated study by a trio of academics examining how business-friendly the court has become in recent years.

Winkler, Adam, “Why big business keeps winning at the Supreme Court,” The Washington Post, June 26, 2017, http://tinyurl.com/yc7wyprj. A law professor argues that both conservative and liberal justices are responsible for the court’s pro-business stance.

Woellert, Lorraine, “Business looks to Kavanaugh to extend Supreme Court hot streak,” Politico, Aug. 15, 2018, http://tinyurl.com/ybd3he5c. A look at critics’ concerns about the court increasingly warming to business causes and how Kavanaugh’s appointment could affect that trend.

Reports and Studies

Frazelle, Brian R., “A Banner Year for Business as the Supreme Court’s Conservative Majority Is Restored | October Term 2017,” Constitutional Accountability Center, June 17, 2018, http://tinyurl.com/ycbsnqj4. An appellate lawyer for the left-leaning Constitutional Accountability Center reviews the Supreme Court’s 2017 term, examining cases backed by the U.S. Chamber of Commerce and the impact of the court’s decisions on workers and consumers.

Shapiro, Ilya, and Frank Garrison, “What Kind of a Judge Is Neil Gorsuch?” Cato Institute, March 22, 2017, http://tinyurl.com/yc7wgc93. Two conservative scholars examine Neil Gorsuch’s judicial record on a host of issues prior to his appointment to the Supreme Court.

The Next Step

Brett Kavanaugh

Eidelson, Josh, “Kavanaugh Sided With Trump Casino in 2012 to Thwart Union Drive,” Bloomberg, July 30, 2018, https://tinyurl.com/ycvv6pax. Brett Kavanaugh’s participation in an appeals court ruling against union workers at the Trump Plaza Hotel and Casino in Atlantic City, N.J., reflects an anti-union predisposition, according to labor advocates.

Goldstein, Matthew, “Brett Kavanaugh Likely to Bring Pro-Business Views to Supreme Court,” The New York Times, July 10, 2018, https://tinyurl.com/ybq9l7qf. Before becoming a Supreme Court justice, Kavanaugh had a record of ruling against federal agencies in favor of businesses and deregulation.

Woellert, Lorraine, “Trump asks business groups for help pushing Kavanaugh confirmation,” Politico, July 9, 2018, https://tinyurl.com/y9lowytv. The Trump administration urged business groups to support Kavanaugh’s nomination to the Supreme Court, noting 75 instances in which he had ruled against federal regulations during his judicial career.

Discrimination Cases

Higgins, Tucker, “The Supreme Court could make it harder for workers to sue over issues like sexual harassment and pay discrimination,” CNBC, Oct. 29, 2018, https://tinyurl.com/y7mlr6nh. The Supreme Court will soon decide whether forced arbitration between employees and employers over issues such as discrimination or harassment is acceptable.

Njus, Elliot, “Sweet Cakes owners appeal to U.S. Supreme Court,” The Oregonian, updated Oct. 25, 2018, https://tinyurl.com/ybboowe7. An Oregon bakery that refused to make a wedding cake for a lesbian couple asked the Supreme Court to step in after the state ordered the owners to pay the couple $135,000 in emotional damages.

Schilling, Sara, “The Arlene’s Flowers case is back in the state Supreme Court – here’s why,” The Seattle Times, Nov. 15, 2018, https://tinyurl.com/y8eoclcx. A Washington state florist who refused to do floral arrangements for a same-sex wedding is asking the state Supreme Court to reconsider the case, hoping the U.S. Supreme Court’s decision in a similar Colorado case will work in her favor.

Organizations

Cato Institute
1000 Massachusetts Ave., N.W., Washington, DC 20001-5403
1-202-842-0200
https://www.cato.org/
A libertarian think tank with scholars studying a number of public policy issues, including constitutional and judicial topics.

Constitutional Accountability Center
1200 18th St., N.W., Suite 501, Washington, DC 20036
1-202-296-6889
https://www.theusconstitution.org/
A left-leaning think tank, law firm and advocacy center focused on a variety of legal issues.

Georgetown University Law Center Supreme Court Institute
600 New Jersey Ave., N.W., Washington DC 20001
1-202-662-9630
https://www.law.georgetown.edu/supreme-court-institute/
University program that offers “moot court” practice sessions to counsel preparing to appear before the Supreme Court and hosts annual public previews of the court’s docket, panel discussions and other research-based activities.

SCOTUSblog
http://www.scotusblog.com/
feedback@scotusblog.com
Blog maintained by legal experts that details the court’s activities and offers case analysis.

Supreme Court Historical Society
224 East Capitol St., N.E., Washington, DC 20003
1-202-543-0400
http://supremecourthistory.org/index.html
Nonprofit group dedicated to the collection and preservation of history regarding the Supreme Court.

The Supreme Court of the United States
One First Street, N.E., Washington, DC 20543
1-202-479-3000
https://www.supremecourt.gov/
The nation’s highest court, consisting of nine justices and more than 500 employees.

DOI: 10.1177/237455680435.n1