Roberts Court's ‘Pro-Business' Label Questioned

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By Patrick Gregory

Nov. 23 — The Roberts Court may not be as “pro-business” as some suggest, panelists at an American Bar Association discussion said Nov. 20.

“I don't think it's a pro-business court,” Thomas G. Hungar of Gibson Dunn, Washington—who has argued 26 cases before the U.S. Supreme Court—said.

Rather, it's a “court that is interested in business issues” including even tricky patent and trademark questions, he said.

But panelists disagreed about the extent to which Chief Justice John G. Roberts Jr. has changed public perception about the court being divided on ideological lines.

Business Numbers

The win/loss rate of businesses at the Roberts Court may not be as pro-business as it seems, Deanne Maynard of Morrison & Foerster, Washington, who has argued 13 cases before the high court, said.

Maynard said businesses at the Roberts Court have a 64 percent win rate as petitioners and a 37 percent rate as respondents, citing Epstein, Landes and Posner, How Business Fares in the Supreme Court, 97 Minn. L. Rev. 1431 (2013).

Non-business petitioners and respondents have win rates of 63 and 37 percent respectively, Maynard said.

Those numbers are essentially the same, suggesting that the court's treatment of businesses is now in line with that of other parties, Maynard said.

Some have described the court as pro-business based on high-profile decisions such as Wal-Mart Stores, Inc. v. Dukes, 79 U.S.L.W. 4527, 2011 BL 161238 (U.S. June 20, 2011) (79 U.S.L.W. 2730, 6/21/11), and Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010) (81 U.S.L.W. 733, 11/20/12).

The Wal-Mart court ruled in favor of the nation's largest employer, which faced a mega-class action alleging discrimination, while the Citizens United decision removed long-existing limits on corporate campaign spending.

The court may be focusing on business cases simply because business is a “big part of what matters to all of us” since the 2008 recession, Donald B. Ayer of Jones Day, Washington, said.

Umpire Role Achieved?

Hungar said he believes the justices are “calling balls and strikes” in business cases.

More broadly, Roberts has been “incredibly effective” in his goal of moving the court away from a perception of being ideologically divided despite being “very conservative” himself, Ayer said.

Roberts is seen to lead the court from a position that isn't associated with the conservative or liberal wings of the court, Ayer, who has argued 19 cases before the court, said.

Roberts has even been “yelled at by conservatives,” which helps him achieve a perception of being non-partisan, Ayer said.

Ayer pointed to Justice Antonin Scalia writing “nasty things” about Roberts.

This “enormous” credibility could make Roberts more comfortable making dramatic conservative rulings in the future, Ayer said.

But Maynard said that many who follow “mainstream” news probably see the court as ideologically divided.

Hungar agreed, saying that Roberts has had an impact but that the public doesn't see the court as unified.

Discrimination Protections

Two recent decisions might cut against the “pro-business” label because they can be viewed as an expansion of workplace discrimination protections, panel moderator Brigid F. Cech Samole of Greenberg Traurig, Miami, said.

The court found that employers may violate the Pregnancy Discrimination Act if they fail to offer work accommodations to pregnant employees, in Young v. United Parcel Serv., Inc., 83 U.S.L.W. 4196, 2015 BL 82478 (U.S. March 25, 2015) (83 U.S.L.W. 1425, 3/31/15).

The court also ruled that an employer may be liable under Title VII of the 1964 Civil Rights Act for not accommodating the religious practice of a job applicant, even if the employer doesn't know that job requirements conflict with the practice, in EEOC v. Abercrombie & Fitch Stores, Inc., 83 U.S.L.W. 4373, 2015 BL 171330 (U.S. June 1, 2015) (83 U.S.L.W. 1822, 6/2/15).

The panel discussion, entitled “Tour of the Ivory Tower: Developments in the U.S. Supreme Court for Business Lawyers and Clients,” was presented by the ABA's Business and Corporate Litigation Committee.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com