In the passing convulsions of partisan government, it’s easy for our corporate lieges to depict themselves as victims. There’s always some legislative push, or Congressional leader, to bedeck with alarmist rhetoric about the “tax-and-spend” set in Washington — even as these same clever professional victims harness the supine Congress to tamp down the estate tax, extend regressive tax cuts and ensure that the regulatory state keeps weighing the financial industry’s various roulette wheels in the house’s favor.
But behind the all the public inveighing over the wild-eyed excesses of our Jacobin Congress and (more laughably still) an “anti-business” White House, our business chieftains are, true to management form, pursuing a longer-term agenda to secure their federal interests on a far more permanent footing. There is, after all, a third branch of our federal government, and as the New York Times’ Adam Liptak notes, the U.S. Supreme Court has been far more obliging in delivering pro-business verdicts under the current leadership than at any other point in its modern history.
And while the business community can use its lobbying clout to handily retool whatever reform initiatives Congress erratically puts forward, the high court is where much of the real action is for the corporate set. It’s the lead forum for the bids to limit tort claims and class action suits, the rollback of environmental regulations, the generous recastings of antitrust, labor and intellectual property law, all in the interests of the people who own the greatest percentage of the American dream and who also pay the highest hourly fees. Oh, and let’s not forget campaign finance law, recently rolled back to giddy 19th-century robber-baron form, vastly simplifying and streamlining the business world’s bankrolling of all our representative bodies at once.
And as Liptak observes, the obsequious performance of the Roberts court before the bar of business is wonder to behold. A study conducted by the Times in conjunction with researchers at Northwestern University and the University of Chicago found that of the 1,450 business-related cases the Court has decided since 1953, the present court possesses an outsize share. Over its five-term tenure, the Roberts Court has also decided a higher proportion of the cases on its business docket in business’s favor — 61 percent, versus 46 percent from the still quite right-leaning Rehnquist Court, and 42 percent overall since 1953.
One handy measure of this shift is the frenetic litigating getting done over at the U.S. Chamber of Commerce. The group’s legal team, the National Chamber Litigation Center, recently enjoyed an impressive run of 13 victories in the last batch of 16 business rulings handed down by Team Roberts. That’s heartening news indeed for the companies who sit on the Litigation Center’s board, including Lockheed Martin, GlaxoSmithKline, Verizon, Viacom and Ford. But as Carter G. Phillips, a commercial litigator who often represents the Chamber in high-court proceedings, these winning streaks are, well, just business as usual. As he wrote on the occasion of the group’s 30th anniversary in 2007:
I know from personal experience that the chamber’s support carries significant weight with the justices. Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center.
The liberal Center for Constitutional Accountability has toted up the numbers on the Chamber’s recent record, finding that the group prevails in 68 percent of the cases heard by the Roberts court, compared to a 56 percent success rate over the last 11 years of the Rehnquist Court. But of course the Chamber Litigation Center’s executive vice president, Robin S. Conrad, is well versed in presenting the wishlist of the market’s lords as the very fabric of our natural order, so she offers a more serenely impartial estimate of the group’s recent run of pleasing high-court outcomes.
Why have we been successful? […] I’d like to think it’s because of the quality of the arguments and the briefs we present to the court. The court is looking for reliable voices to confirm its decisions, and I’d like to think it’s looking to the chamber because it tells a straight story, and we try not to be shrill or ideological. The chamber has earned a reputation for being a credible voice of business.”
But such self-enamored assessments overlook a key factor: The most accomplished arguments in the world won’t gain much headway without a sympathetic auditor, and in John G. Roberts the owning and executive classes have a Chief Justice so attuned to fulfilling their every whim they may as well go ahead and call him Jeeves. During its short tenure, five lucky voters on the Roberts Court have stricken a 97-year-old central doctrine of antitrust enforcement and erected barriers to equal-pay litigation in the workplace so that Congress drafted new legislation to uphold legal remedies for workers victimized by gender discrimination. As the New Yorker’s Jeffrey Toobin has reported, that track record prompted Associate Justice Stephen Breyer, who votes in the court’s moderate minority, to remark “It is not often in the law that so few have so quickly changed so much.” And that was before the bit of egregious corporate errand-running known as Citizen’s United.
This boardroom-first outlook on legal affairs is entirely in keeping with Roberts’ career in private legal practice. “Shortly before Roberts became a judge,” Toobin writes, “he successfully argued in the Supreme Court that a woman who suffered from carpal-tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act. Likewise, Roberts won a Supreme Court ruling that the family of a woman who died in a fire could not use the federal wrongful-death statute to sue the city of Tarrant, Alabama. In a rare loss in his thirty-nine arguments before the Court, Roberts failed to persuade the Justices to uphold a sixty-four-million-dollar fine against the United Mine Workers, which was imposed by a Virginia court after a strike.”
Roberts’s best-known case before the high court was Lujan v. National Wildlife Federation, where he successfully argued that an environmental advocacy group had no legal standing to challenge a Reagan White House decision to place 180 million acres of federal wilderness land on sale to mining interests. The Wildlife Federation’s complaint should be thrown out, Roberts argued, because it “was in no way distinct from the interest any citizen could claim, coming in the courthouse and saying, ‘I’m interested in this subject.’”
That dismissive reference to the policy hobby horses favored by “any citizen” makes for edifying reading — particularly coming as it does out of the mouth of a rock-ribbed anti-government Reaganite, here making an inapposite, robust case for the unmolested sovereignty of the executive bureaucracy. But laid alongside the expansive protections afforded to the speech of our corporate polity in the court’s campaign finance ruling, the logic of Roberts’s Lujan argument at least looks consistent, if not sensible. It points out what the Court has long held, ever since it first began tussling with the awkward questions of social equality back in the nineteenth century: Some citizens are more equal before the law than others.