The Roberts Court: The Struggle for the Constitution (45 page)

One of the most important legal doctrines for business is federal preemption. If Congress expressly states that federal law is supreme, then any state laws on the subject will be preempted or displaced. Where Congress has not made that intent clear, the Court must look at whether a state law on the same subject conflicts with the federal law or whether Congress has legislated so broadly that the federal law “occupies the field” and there is no room for state regulation. Business generally favors federal preemption because it prefers to operate under one, uniform federal law instead of trying to comply with fifty different state laws. However, business also prefers federal law because it perceives federal courts to be more hospitable than state courts and juries when it is sued, usually by consumers who want, where state law provides it, to hold businesses to a tougher standard. A concerted effort was launched by the George W. Bush administration to insert preemption clauses in newly adopted federal regulations.

There is a long-standing judicial presumption against preemption, but it is fast disappearing in the Roberts Court. The business community has been quite successful in arguing for preemption of state lawsuits
alleging personal injuries in a number of areas: against claims of defective design, labeling, and manufacturing of medical devices; state-law securities class action lawsuits by holders of securities; state inspection and registration requirements for bank subsidiaries; state-law product liability lawsuits against vaccine makers; failure to warn and defective design of locomotive parts; and even state requirements for the humane treatment in slaughterhouses of pigs that cannot walk.

However, despite those business successes, a number of which were won with large Court majorities, there have been some preemption defeats for business, though not as many as the victories. In the 2008–09 term, a 6–3 majority found no preemption of a state-law claim that drug manufacturers put an inadequate warning label on a drug that led to the amputation of a musician’s arm. In a case involving the marketing of “light” cigarettes, a 5–4 Court allowed a state-law fraud suit to go forward despite the Federal Cigarette Labeling and Advertising Act. And in 2011, a unanimous Court held that federal auto safety standards did not preempt state personal injury suits on whether car manufacturers should have installed lap-shoulder belts instead of simply lap belts on the rear inner seats of Mazda minivans.

Business suffered a major preemption defeat in 2011 in a case actually brought by the U.S. Chamber of Commerce. In
U.S. Chamber of Commerce v. Whiting
, the chamber challenged an Arizona anti-immigration law that severely penalized businesses that hired illegal aliens. The chamber argued unsuccessfully that the law was preempted by federal immigration law. The 5–3 decision in favor of Arizona was written by Roberts and joined by Scalia, Kennedy, Thomas, and Alito.

That the results in preemption cases are so often unpredictable and sometimes involve unusual alignments of justices is not surprising. Underlying preemption cases are difficult and divisive questions about federalism—the relationship between the national and state governments—and the different ways in which individual justices interpret the text of statutes, legislative history, and congressional intent. Some justices, such as Thomas, stop at the text.

Two other areas of the law have figured into the charges that the Roberts Court is pro-business: arbitration and job discrimination. Long before the Roberts Court, a pro-arbitration view dominated the Supreme Court. Arbitration is largely a private process before a neutral arbiter. Its advocates contend it is a more cost-efficient and timely resolution of disputes than court litigation. Much of its shine has dulled in recent years, however, as academic and other studies revealed that the process does not always take place on an even playing field and the arbiter is not always so neutral.

For some time, few if any justices on the Roberts Court were seriously skeptical of arbitration as are many consumer organizations today. Through a series of rulings, the justices have strictly enforced arbitration clauses demanded by business, including prohibiting class actions in consumer contracts and removing civil rights claims by employees from court review. Whether recent pushback by the Court’s liberal wing will continue is too early to tell.

The U.S. Chamber of Commerce likes to point to its losses in job discrimination cases in the Roberts Court as evidence that the Court is not pro-business or pro-chamber. But as with preemption, the results are mixed. Business has suffered the most losses in cases involving claims of retaliation by employers against employees who claim discrimination or witnesses who report discrimination. The justices, often unanimously, broadly read the protections from retaliation in the nation’s job-bias laws. In one sense, critics claim, those are easy cases for the justices because the retaliation provisions themselves are broadly written and even the most conservative justice would be offended by a boss who retaliates against a worker asserting a right to be free from discrimination. However, those defeats for business are significant because retaliation claims are the fastest growing category of discrimination claims today and employers risk substantial damages if they violate the law.

Other business defeats have not been as significant and often involve interpretations of technical words in the statutes. Civil rights groups are more concerned about business victories, such as in the
Ledbetter
decision,
reflecting a cramped view of Congress’s intent that civil rights laws be read broadly, and again in a 2009 decision in
Gross v. FBL Financial Services
. In
Gross
, a sharply divided Court, led by Thomas, essentially made it much more difficult for workers to prove age discrimination under the federal Age Discrimination in Employment Act. The conservative majority, in its decision, ignored the issue that the Court initially agreed to decide and that was briefed and argued by the parties. Instead, the majority adopted a new, more rigorous proof standard never sought by the parties. The Court’s dissenters, led by Justice Stevens, accused the majority of “unnecessary lawmaking” as well as a wrong interpretation of the discrimination law.

Standing, preemption, burdens of proof, time limits, arbitration—unlikely headline-grabbers, but keys to the courthouse doors. So what to make of the accusations that the Roberts Court is pro-business in the face of often mixed results? In a series of interviews, a number of justices across the ideological spectrum rejected the pro-business label as a superficial analysis of their rulings, and politically motivated.

“The Court decides cases in a way that corporations tend to win, no doubt, and it’s a pro-defendant Court,” said one justice, explaining that for many of them, the issue is more a concern with costly litigation, which is considered a potential burden on the economy. This justice hastened to add, “But I think its decisions are the result of analyzing issues in a fair way.”

Another justice was more forceful in disputing the label. “Go through our opinions. We’ve come out on the side against corporations—I haven’t counted the cases, but as far as I know, as much the other way. That’s nonsense, political nonsense. Some of it is lawyers are just more resourceful. There are more organized causes. Public Citizen raised a lot of this dust. That’s one factor.”

Some disagreements in the business cases run deeper than others, and arbitration is emerging as an area of potentially deeper divisions in the future. As one justice noted, “Some cases it is very difficult to see how
my colleagues see things. One of them,
AT&T Mobility v. Concepcion
.” (In that decision, involving consumers’ attempts to bring a class action over cell phone charges, a 5–4 majority said federal law preempted a California law that held waivers of class actions in arbitration agreements were unenforceable.)

“Here was the Federal Arbitration Act trumping whatever rule the state had about contracts,” said the justice. “The FAA started out as a means to solve disputes less expensively, more swiftly. The initial tug against it was judges who thought it was encroaching on their turf, so there was resistance to arbitration. Using the Arbitration Act to disadvantage consumers is not an inevitable interpretation of the act.”

Another justice initially thought the pro-corporate charge was the result of “some law professor doing a poor research job.” However, “Then I read [Judge Richard] Posner and thought, ‘I see there’s a point here.’ I don’t know to what extent it is, but too much is made of it because there are so many different cases. It’s easy to beat the Court with.”

This justice was referring to a 2010 study by the leading conservative federal appellate judge Richard Posner of Chicago; the political scientist and law professor Lee Epstein of the University of Southern California; and the economist William Landes of the University of Chicago. They analyzed more than 1,400 “economic activity” decisions from 1953 to 2009 to determine whether the Roberts Court was pro-business. Those cases involved antitrust, mergers, bankruptcy, regulation of public utilities, federal/state consumer protection, labor arbitration, and employment discrimination.

Comparing the last five years of the Rehnquist Court, which ended in 2005, to the first five years of the Roberts Court, the study found that the Roberts Court ruled for business 61 percent of the time to 46 percent for the Rehnquist Court, and to 42 percent for all Supreme Courts since 1953—a “statistically significant” difference. The study also found that of the top five most pro-business terms since 1953, two were in the Roberts Court.
³

Robin Conrad, head of the U.S. Chamber of Commerce’s litigating arm, challenges claims that the success of business and the chamber in the Roberts Court is the result of the Court’s pro-business bias.

“Two key values that seem to influence the outcomes of business cases are the preference for a uniform set of legal rules, and for laws and regulations that produce predictable results,” she wrote in 2009. “The business community regularly advances these values in its amicus briefs. Another possible explanation for the degree of consensus among the Justices is that most business cases involve questions of statutory interpretation, which are less controversial than culturally-charged constitutional cases.”
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Numbers only tell part of a story that is more complex than appears on the surface. However, Senate Judiciary Democrats successfully painted a portrait of the Roberts Court as pro-business with some staying power during the Kagan hearings that summer of 2010, and the Court itself helped them with its ruling in
Citizens United
.

For her part, Kagan sailed through her confirmation hearings, handling more than seven hundred questions with what was fast becoming a trademark sense of humor and few insights into how she would rule. She did, however, distance herself somewhat from the chief justice in her view of a judge’s role. Roberts captured media and public attention with his comparison of the judge to baseball’s umpire: someone who just calls balls and strikes. Kagan agreed with the metaphor’s suggestions that judges should be neutral and that while they have an important role, it is a limited one because it is the people and their elected representatives who make the fundamental decisions for the nation.

“I suppose the way in which I think that the metaphor does have its limits was that the metaphor might suggest to some people that law is a kind of robotic enterprise, that there’s a kind of automatic quality to it, that it’s easy, that we just sort of stand there and, you know, we go ball and strike, and everything is clear-cut, and that there is no judgment
in the process,” she said. “And I do think that that’s not right. And it’s especially not right at the Supreme Court level where the hardest cases go and the cases that have been the subject of most dispute go.

“And as to that, I think that judges do, in many of these cases, have to exercise judgment. They’re not easy calls. That doesn’t mean that they’re doing anything other than applying law. But we do know that not every case is decided 9–0, and that’s not because anybody’s acting in bad faith. It’s because those legal judgments are ones in which reasonable people can reasonably disagree sometimes. And so in that sense, law does require a kind of judgment, a kind of wisdom.”

On August 5, 2010, the Senate confirmed Kagan by a vote of 63–37; one Democrat voted no and five Republicans voted yes. On the first Monday in October of that year, she took her seat as the third female justice on the bench—a historic milestone.

Like Sotomayor, Kagan took to the bench like a veteran. In the words of one of their colleagues, “Neither of them is a shrinking violet.” Both women are more vocal during arguments than the justices whom they succeeded, and they have energized the moderate-liberal side of the bench.

Kagan’s questions during arguments on her first day were concise, direct, and delivered in a pleasant tone. She also showed a deftness in picking up on her colleagues’ questions if they had gone unanswered. She seemed to know intuitively that oral arguments are as much a conversation between justices as between justices and the lawyers arguing the case.

However, it was not as easy as it looked. Unlike Sotomayor and the rest of the justices, Kagan had never been a judge and she had to learn the mechanics of being a judge—from the totally mundane to the more important. For example, when should the briefs in a case be read? Two weeks before the argument, or the night before? How should the four clerks be used? Should they write first drafts of opinions? Should they work off an outline provided by her? Should they all be brought into the discussion on all cases, or just the clerk assigned to a particular case?

After a period of experimentation, Kagan found her comfort level. She runs a collective type of shop in which she talks with all four clerks before and after arguments and sometimes at other times, but one clerk takes the lead on each case. The lead clerk on a case writes a bench memo for Kagan in which she asks the clerk how he (or she) would deal with the case if he were a judge. The memo is shared with all of the clerks so all can participate in the case discussions. For opinion writing, Kagan has the lead clerk prepare an outline, which she revises, a draft opinion, and a notebook with all of the cases mentioned in the draft opinion. She then puts the draft opinion on one computer screen, opens a new document on another, and completely rewrites the draft. As with Chief Justice Roberts, whose clerks also write a first draft, the final opinion is all Kagan. The first opinion of the junior justice is rarely a major one, and Kagan’s first—a bankruptcy decision—was no different. But she soon would show a very distinctive style.