Business in the Supreme Court

Earlier this year, Judge Richard Posner and his co-authors William Landes and Lee Epstein captured attention with their article, How Business Fares in the Supreme Court. The article, which appeared in the Minnesota Law Review, evaluated Supreme Court cases in which at least one of the litigants was a business. Among their conclusions, the authors found that the "Roberts Court is much friendlier to businesses than either the Burger or Rehnquist Courts, … taking more cases in which the business litigant lost in the lower court and reversing more of these … [and] affirm[ing] more cases in which business is the respondent…" Moreover, the authors found that of the ten most pro-business justices serving between the end of World War II and the present, five are currently on the court.

Unsurprisingly, these conclusions are not universally accepted, and there are debates about how to measure and characterize the Court’s attitude towards business. While others debate those questions, however, it is worth pausing to flag a few cases in the upcoming Term that involve business interests. Keep an eye on these cases, and you may be able to draw your own conclusions about the attitudes of the Roberts Court and the individual justices who sit on it.

Two particularly important cases for industries in which organized labor is active (and of course for organized labor itself) are Unite HERE Local 355 v. Mulhall and National Labor Relations Board v. Noel Canning. In Mulhall, the Court will consider whether it is permissible under the Labor-Management Relations Act (LMRA) for management to agree not to oppose an organizing drive. This has become a fairly common practice, but some people argue that such an agreement constitutes management giving the union a "thing of value," which the LMRA does not allow. Ruling this practice out of bounds could make union organizing substantially more difficult.

In the second case, Noel Canning, the Court will consider the scope of the President’s recess appointment power. This case has particularly far-reaching implications. The immediate question is whether the President’s appointments to the National Labor Relations Board (NLRB) are valid. If they are not valid, then the NLRB’s actions - which, in this case, were not favorable to management - were also invalid, as it would have been operating without a quorum in the absence of the recess appointments. But the President uses his recess appointment power in many arenas, not just with respect to the NLRB. Generally speaking, a holding limiting that power would make it easier for Congress - or more accurately, for some members of the Senate - to block not only the appointment of particular nominees but to undermine the functioning of some regulatory agencies. (SCOTUSblog has sponsored a symposium exploring many the constitutional and political issues in this case.)

There is also a series of consolidated cases about whether the federal Securities Litigation Uniform Standards Act (SLUSA) preempts private class actions - Chadbourne & Parke v. Troice, Willis of Colorado Inc. v. Troice, and Proskauer Rose LLP v. Troice. These SLUSA cases, along with Mississippi ex rel. Hood. v. AU Optronics Corp., which tests the scope of the Class Action Fairness Act, could be bellwethers. In the past few Terms, the Court majority has been notably hostile to class action litigation, which is widely seen as a pro-business stance (see Wal-Mart v. Dukes; AT&T v. Concepcion; Comcast v. Behrend). These cases give the Court an opportunity to continue in that vein in two very different contexts.

Other cases that might bear watching include challenges to the enforceability of and the EPA’s authority under the Clean Air Act in Environmental Protection Agency v. EME Homer City Generation and American Lung Association v. EME Homer City Generation; cases about the scope of airline regulation in Air Wisconsin Airlines Corp. v. Hoeper and Northwest v. Ginsberg; a case about truth in advertising in Lexmark Int’l v. Static Control Components; and a case about the scope of the Fair Labor Standards Act in Sandifer v. U.S. Steel Corporation. There is also a case, DaimlerChrysler AG v. Bauman, about whether a state can assert jurisdiction over a corporation whose only contact with the state is that an indirect corporate subsidiary acts on its behalf in the state.

As Posner and his co-authors note, many business-related cases are decided unanimously or with overwhelming majorities, both for and against business interests. Whether outcomes or individual votes in any of these cases can be attributed to attitudes about business is a controversial question. It will be interesting to see, however, whether the identified trends continue into the coming Term.