Daniel J. Popeo: What 'pro business' Supreme Court? 

Over the past several months, some politicians and activists have intensified their campaign to label the U.S. Supreme Court under Chief Justice Roberts’ leadership as reflexively “pro-business.”

Over the past several months, some politicians and activists have intensified their campaign to label the U.S. Supreme Court under Chief Justice Roberts’ leadership as reflexively “pro-business.”

A close examination of these arguments reveals the claim to be little more than an inside-the-Beltway urban legend.  But even more troubling than the misleading facts being presented is the broader, underlying message activists want to implant in the public’s mind.  They want Americans to see the judiciary as a political body whose business verdicts are biased and harmful to our well-being.

The notion of a pro-business Supreme Court has been a favorite “populist” refrain of politicians for some time.  This spring, activist groups and sympathetic academics have produced “reports” on the Supreme Court and its business cases during Chief Justice Roberts’ tenure.

The assertions of these studies have in turn been parroted in news stories, op-eds, and cable news shows.  And on the day President Obama announced his nominee to replace Justice Stevens, three activist organizations sponsored a full page advocacy ad in The Washington Post accusing the Court of being a corporate subsidiary.

Court critics have especially focused their ire on the 2009 Citizens United campaign finance ruling, where five justices recognized the First Amendment rights of companies and other state-created entities.

But the labeling campaign has gone far beyond Citizens United, with activists citing decisions involving punitive damages, environmental and health regulations, and even procedural rules affecting civil litigation.  The criticism of certain Court decisions solely on the basis that the business litigant prevailed represents one-dimensional advocacy in its most disingenuous form.

The Court’s recent rulings on punitive damages, for instance, rely on a long line of cases which respect all civil litigation defendants’ due process rights to be free from arbitrary and excessive punishment.

Instead of acknowledging that justices such as Breyer and Souter either authored or joined majority opinions in damages cases involving tobacco and oil defendants, activists instead dwell on these cases’ factual underpinnings to demonize the outcomes.

Activists have also lambasted the Court for rulings that in effect limit litigation against FDA-approved medical products, but omit the detail that federal law explicitly permits such “federal preemption.”

If the justices are in fact working on behalf of U.S. businesses, they probably should be fired:  A more complete look at the Supreme Court’s rulings in commercial cases reveals numerous instances where business interests lost, and lost big.

In its current term, for example, the Court unanimously held for the plaintiffs in a securities fraud class action case; unanimously upheld shareholder suits against investment advisors; and permitted federal class action lawsuits in a state which prohibits such suits.

Last year, the justices rejected the preemption arguments of drug makers and allowed state tort suits against FDA-approved drugs.  In 2008, the Court upheld state fraud suits against cigarette manufacturers.  These are but a few examples.

But let’s assume for argument’s sake that one can fairly label a judicial decision “pro-business.”  Is there something inherently wrong with that?  Those who have been accusing the Court of a corporate bias certainly think so.

Activists and their allies subtly imply that when businesses win in the courts, Americans lose.  They have it exactly backwards.  A business is created, run, and staffed by people, and it offers useful and needed products and services to the public.

Real people thus suffer when businesses are denied constitutional rights, or are threatened by abusive prosecutors or shackled with capricious regulations and lawsuits.  Those enterprises will struggle to create new jobs, generate positive returns for shareholders, contribute to pension plans, and provide consumers with new innovations.  Isn’t that the opposite of what hard-working Americans need?

What businesses do seek from the judiciary is a fair hearing, protection of their rights, and a measure of predictability in the law.  As Justice Breyer noted in an opinion this year involving a critical jurisdictional matter which had widely split the lower courts, “Predictability is valuable to corporations making business and investment decisions.”

In other business-related cases, Supreme Court justices from across the ideological spectrum have embraced and noted this need for clarity and consistency.

The ultimate goal of this smear campaign seems to be convincing Americans that the judiciary is just another political body with an ideological ax to grind.  Over the next month, the examination of a Supreme Court nominee and the Court’s release of nearly 40 opinions will occur simultaneously.

Special interest legal activists will conflate the two and lecture us on how there’s really no difference between the political and judicial processes.  They’ll label disfavored Court rulings as further proof of a pro-business agenda and demand that the nominee reject such opinions now in her hearings and on the bench if she’s confirmed.

Hopefully, the public will view this charade skeptically and keep the basic principles taught in Civics 101, not to mention the U.S. Constitution, in mind – legislatures make the laws, and the judiciary interprets them.

Examiner contributor Daniel J. Popeo is chairman and general counsel of the Washington Legal Foundation.

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A daily newspaper covering San Francisco, San Mateo County and serving Alameda, Marin and Santa Clara counties.
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