New book: Is the Roberts Court pro-business? Not necessarily

Case Western Reserve School of Law Professor Jonathan Adler and business law experts examine U.S. Supreme Court’s record on business cases




News Release: Tuesday, July 19, 2016




CLEVELAND—At first glance, the new book Business and the Roberts Court (Oxford University Press) is a valuable read for lawyers practicing business law, and for the academics who teach it. Digging deeper, it’s a captivating mystery.

Does the United States Supreme Court under Chief Justice John Roberts live up to a pro-business tag attached by some court watchers? Or does the court shift in directions that make it seem anti-business?

“The goal was to create a volume that had value to corporate counsel, partners in firms, appellate practitioners and people who follow the court in a professional capacity,” said Jonathan H. Adler, the book’s editor and contributor of its introduction and final chapter, Business as Usual? The Roberts Court and Environmental Law. Adler is the Johan Verheij Memorial Professor of Law and director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

Business and the Roberts Court provides clues about how the nation’s high court may respond to business cases put before it in the years ahead, when a replacement is eventually chosen for conservative Justice Antonin Scalia, who was found dead in Texas on Feb. 13. The book was compiled before Scalia’s death.

Business law and regulatory cases touch on many important legal doctrines and can have far-reaching effects. Understanding the basis on which the Supreme Court decides business-related cases is of tremendous importance to practitioners and academics, Adler said.

Business and the Roberts Court covers extensive ground by:
• Examining the treatment of "business law" issues.
• Involving prominent scholars who look closely at recent decisions of interest to business.
• Evaluating the extent to which it is "pro-business" and what that means.
• Analyzing its approach to various business cases. Roberts was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003.

President George W. Bush nominated Roberts as chief justice of the United States, and Roberts took his seat on Sept. 29, 2005. The nominee of a politically conservative president was widely assumed to be pro-business. Adler’s introduction, In Search of the Pro-Business Court, raises the prospect that the Supreme Court under Roberts hasn’t been predictable.

Taken together, the book’s chapters lead to a conclusion, according to Adler, that where business interests seek outcomes that are in line with the justices’ doctrinal commitments, they can expect to prevail. Yet, where a business is unable to marshal arguments that appeal to the justices’ underlying judicial philosophies, its odds are less favorable, no matter how much a business may believe is at stake.

“This volume should make clear that the Court’s tendencies in business-related cases are not easily reduced to a hashtag slogan,” Adler said.

Since Roberts was confirmed, the Court has handed the business community its share of victories, but it has also handed business groups substantial losses, Adler wrote.
For example, businesses would likely approve of decisions raising the formal bar for filing many lawsuits, upholding broad arbitration clauses and rejecting new avenues of class-action litigation against large corporations.

The Court has also refused to pre-empt litigation against drug makers or block state immigration laws penalizing businesses that hire undocumented workers, and it unleashed the federal regulation of greenhouse gases by the U.S. Environmental Protection Agency. Adler wrote the in the book’s introduction that “these are hardly outcomes favored by big business.”

Among the book’s authors and chapter titles:

Bradley W. Joondeph: Business, the Roberts Court, and the Solicitor General: A Further Exploration
At Santa Clara University School of Law, Joondeph is an author on the topics of federalism, judicial behavior and American constitutional development. He has had extensive experience with the Supreme Court, having served as judicial clerk to Sandra Day O’Connor.

J. Mitchell Pickerill: Is the Court Business-Friendly? Is the Pope Catholic?
Pickerill, from Northern Illinois University, is involved in research that focuses on the relationship between the Supreme Court and the other branches of government.

Richard J. Lazarus: Advocacy Matters
Lazarus teaches environmental law, natural resources law, Supreme Court advocacy, and torts at Harvard Law School. He has represented the United States, state and local governments, and environmental groups in the United States Supreme Court in 40 cases and has presented oral argument in 13 of those cases.


Posted by: Marvin Kropko, July 19, 2016 05:56 PM | News Topics: Official Release