Ask the author: Adler and others on “Business and the Roberts Court”

The following is a series of questions posed by Ronald Collins on the occasion of the publication of “Business and the Roberts Court” (Oxford University Press, 2016, pp. 342), edited by Jonathan H. Adler.

Welcome, Jonathan, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your latest book – it is a thoughtful addition to the scholarly literature on the Supreme Court.

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The task of creating what I might call a constitutional ethos of economic liberty is no easy one. — Justice Antonin Scalia, October 26, 1984

Question: In your acknowledgements, you note that “Business and the Roberts Court” was almost derailed owing to the “untimely passing of Professor Larry Ribstein,” one of the former editors of The Supreme Court Economic Review. Can you say a few words about this and how following his death the book got back on track?

Adler: Larry’s untimely death was a tragedy, and we miss him. He was an important scholar, and he had interesting thoughts on how to understand Citizens United from the perspective of corporate law. His passing meant that I had to find a different way to address Citizens United in the book. Luckily, I was able to convince Joel Gora to come aboard and contribute an excellent chapter.

Finding a replacement wasn’t the only issue, however. After Larry’s death and the consequent delay, some of the other chapters needed to be updated and, given the caliber of contributors to this volume, that meant convincing some very busy people to make more time for this project. Fortunately, the contributors were accommodating. Overall, this experience reminded me how difficult it can be to pull together an edited volume, particularly one that is trying to be somewhat current.

Question: What does it mean for the Supreme Court to be “pro-business”? What sort of definitional and conceptual parameters need to be recognized to begin to answer that question? Then again, are such labels more problematic than helpful?

Adler: That’s really the whole point of the book. In our age of 140-character assessments, there is a push to place a hashtag label on institutions and decisions. But such labels, like “pro-business,” often obscure as much as they reveal. As I discuss in the introduction, there are many different ways one could define “pro-business,” from a willingness to hear business-related cases to a commitment to doctrines that benefit business groups to actual favoritism. More importantly, if we really want to understand how the court approaches specific issues and resolves cases, we need to get beyond the labels and look at the content of the court’s work. Hopefully, this book makes a valuable contribution to that enterprise.

Question: In addition to yourself, your book brings together an impressive array of nine scholars (Matthew Bodie, Brian Fitzpatrick, Joel Gora, Roderick M. Hills, Jr., Bradley Joondeph, Thomas Lambert, Richard Lazarus, J. Mitchell Pickerill and Adam C. Pritchard). Some may take note of the fact that no women are included in this list. Is this owing to a relative paucity of female scholars in the business field, or is something else involved?

Adler: I’m very proud of the line-up in this book. As it happened, the women I approached about participating in the book were unable or uninterested in this project. While it’s true that many of the areas covered in this book, such as antitrust, are dominated by male scholars, there are many important female scholars who work in areas related to the book. This fall we had a conference at Case Western to explore these issues further, and we were fortunate enough to be joined by Catherine Sharkey, Suzette Malveaux, Karen Harned, Brianne Gorod and my colleague Cassandra Robertson.

Question: As far as I can recall, in modern times there has been only one other collection of essays devoted to the judiciary and business and published as a book: “Economic Liberties and the Judiciary,” which was edited by James Dorn and Henry Manne and accompanied by a foreword by Judge Alex Kozinski. Apart from its particular focus on the Roberts court, in what significant ways is “Business and the Roberts Court” similar to or different from that book?

Adler: This book is really focused on the range of issues that are important to business and to understanding how the current court approaches these issues. Thus it is far more descriptive and less normative than the Dorn-Manne collection. Our project was not to determine whether the court should be more or less “pro-business,” but instead to answer the analytically prior question of how to understand what the court is actually doing.

Question: Professor Joondeph’s chapter has eight highly informative tables, which contain some eye-opening facts. Please share a few of those facts with us.

Adler: Among other things, these tables show that when the Chamber of Commerce and the Office of the Solicitor General are aligned, they have had an incredibly high success rate – over 80 percent – both in terms of cert grants and on the merits. Given that the chamber and the SG’s office were aligned more often than not during the Bush administration, the chamber had a significant amount of success during this period.

Question: You note that the “Roberts Court is still a work in progress.” Mindful of that, what do you think might have occurred if Chief Judge Merrick Garland (a former antitrust professor) had been confirmed? Then again, what might we expect from a Trump nominee?

Adler: I think it’s harder than some realize to predict how an appellate judge will act on the Supreme Court, not least because lower courts are far more constrained and can’t overrule prior Supreme Court precedent. That said, I think Judge Garland’s record on the D.C. Circuit indicates that he would have been fairly deferential to regulatory agencies – certainly far more deferential than was Justice Scalia. I also suspect he would have been somewhat skeptical of the court’s pro-Chicago turn in antitrust, and would have joined Justice Breyer in expressing some concerns about this shift.

A Trump nominee is unlikely to have a substantial effect on the court’s approach to business cases, at least in the near term. This is for at least two reasons. First, many business-related cases are decided by wide margins, if not unanimously. Second, where the court divides along traditional ideological lines, it is likely that a Trump nominee would largely vote as Justice Scalia did, especially during his or her first few years on the court. There may be some exceptions to this, however, in areas like pre-emption or the dormant commerce clause, where the court is sometimes closely divided, but not always along traditional ideological lines. In these sorts of cases, a Trump nominee may have more effect.

Question: In his essay, Joondeph states that “there is no benchmark for how often the Chamber of Commerce should prevail if the Roberts Court were ‘business neutral.’” That said, “[c]ritics of the Court,” you write, “often observe that the litigation arm of the Chamber of Commerce has fared particularly well in recent terms.” But, you add, “at times it stays its hand” and does not file a brief in the Supreme Court. Even so, according to the Constitutional Accountability Center, since Chief Justice John Roberts and Justice Samuel Alito joined the court, it has ruled in favor of the chamber’s position 69 percent of the time – contrasted with a 43 percent victory record for the chamber under the Burger court and a 56 percent record under the Rehnquist court. What do you make of this?

Adler: As Brad’s chapter shows, there are multiple factors at work here. The chamber’s win rate is up, but so is the overall level and strategic nature of the chamber’s involvement. The chamber is involved in most business-related cases, but is also conspicuously absent from same cases, often where it is pretty clear that the business-favored outcome is unlikely to prevail. I also think it’s important to look at the sorts of cases the chamber is winning. A large percentage of these cases merely preserve the status quo. The Roberts court today is less likely than its predecessors to approve of innovative theories presented by entrepreneurial plaintiffs’ attorneys. This means the chamber wins more cases, but the law is not moving very far in a more business-friendly direction.

Question: Joondeph also makes several telling points about business and the court’s certiorari docket between the October 2005 and October 2011 terms. For example, he notes that when the Chamber of Commerce and the solicitor general both urged the court to grant review, it was granted in 87.5 percent of the cases. By contrast, when the chamber urged review and the solicitor general opposed it, review was granted in 18.8 percent of the cases.

Of course, that time period was shared largely by a Republican-appointed solicitor general (Paul Clement) and a Democratic-appointed solicitor general (Elena Kagan). Is there any evidence as to how the solicitor general’s party affiliation affects cert outcomes in cases in which the Chamber of Commerce files a brief?

Adler: During the period in question, the Bush administration had more success in the Supreme Court than did the Obama administration, and the Bush administration was more likely to agree with the Chamber of Commerce. I don’t think this is likely the result of party affiliation as much as it is that a somewhat conservative court is more likely to agree with a conservative administration than a liberal one, and a conservative administration is more likely to agree with the chamber than is a liberal one.

Question: In 2013, Lee Epstein, William Landes and Judge Richard Posner published a study analyzing approximately 2,000 Supreme Court decisions from 1946 to 2011. They concluded that the Roberts court was more sympathetic to business concerns than any court in the past six or seven decades. While you acknowledge that this study was “certainly the most comprehensive quantitative examination of the Supreme Court’s handling of business-related cases in the post-New Deal era,” you stress that “it also had its limitations.”

Can you highlight those limitations?

Also, can you comment on what J. Mitchell Pickerill says on page 63 about the “Roberts Court’s predisposition toward economic and business interests”?

Adler: The Epstein, Landes & Posner (ELP) study is important, but as you know I also think it is limited, and does not really prove its claim that this is the most “pro-business” court of the past 70 years. For starters, their methodology doesn’t account for the content of the decisions or the doctrinal baseline. As a consequence, a court may actually produce “pro-business” decisions that are less business-friendly than decisions deemed “anti-business.” The ELP study also does not consider how the law has changed over the period they study. In many areas, including those affecting the ability of plaintiffs to sue corporations, the law is far less favorable to business than it was 40 or 50 years ago, and Supreme Court decisions are part of the reason, yet they see a pro-business trend. The study also treats all decisions supporting business litigants equally, no matter what was at stake.

To illustrate why this is a problem, consider one area I discuss in the book. The Roberts court has decided three cases concerning climate change: Massachusetts v. EPA, AEP v. Connecticut and UARG v. EPA. The side favored by business interests lost the first, won the second and split the third. Under the ELP methodology, these three cases would score as a wash. Yet the net result of these three cases on the legal environment in which business operates is a dramatic and unprecedented increase of federal regulation of business. What business groups lost in Mass. v. EPA is far greater than what they won in the other cases. The ELP study’s approach misses this dynamic. Indeed, given the way that study selected cases for analysis, Mass. v. EPA was not even included because the case caption did not include a business group.

As for the second part of your question, Mitch argues that whatever pro-business leanings one sees in the current court are best understood as a continuation of the trends that began in the Nixon administration and are merely a consequence of the fact that Republican presidents have nominated a majority of the justices who have served on the court over the past several decades, and do not necessarily represent a particular turn toward business.

Question: Richard Lazarus opines that the emergence of a new and private elite Supreme Court bar has played “some role in the shrinking docket” of the Roberts court. How is that so? Can you explain it briefly?

Adler: Richard identifies a few possible reasons for this. One is that crafting an effective brief in opposition to certiorari is exceedingly difficult, making the expertise of elite Supreme Court practitioners that much more valuable. Another is that, as the Supreme Court bar has become more specialized, the quality of certiorari petitions has increased. Richard suggests this has “raised the bar” for certiorari petitions generally, making it harder for individual petitions to stand out.

Question: In October, the court heard oral argument in Samsung Electronics v. Apple, the design patent and profits case. What is your general sense of the Roberts court’s record in patent law cases?

Adler: I will confess that I don’t have a good feel for how the Roberts court approaches patent questions. Space permitting, we would have had a chapter on this issue, but the book is pretty long as it is. Perhaps if there’s ever a sequel we’ll be able to dig into that.

Question: Chapter 8 contains an essay by Joel Gora on Citizens United v. Federal Election Commission. The appellant in that case was a nonprofit corporation. Given that, how is Citizens United a “business” case? Or to put it another way, if wealthy individuals and super PACs give the lion’s share of money in presidential campaigns, how does that constitute a “business” matter?

Adler: Citizens United is often pointed to as “Exhibit A” supporting the claim that the Roberts court is “pro-business.” This is because the decision invalidated congressionally imposed limits on the ability of corporations – profit and non-profit alike – to make independent expenditures supporting or opposing candidates for office. Thus, the argument goes, the decision made it much easier for large corporations to influence elections. Yet as Joel shows, the decision is really better understood as part and parcel of the court’s aggressive First Amendment jurisprudence and, as a practical matter, has done more to unleash spending by wealthy individuals than by for-profit corporations.

Question: In his essay, Gora (who represented the ACLU in Buckley v. Valeo and was also on the ACLU’s amicus brief in Citizens United), maintains that “the lesson of the Roberts Court in Citizens United is that there is no such thing as a special, separate, privileged ‘First Amendment business.’” By contrast, some argue that the First Amendment is being misused as a deregulatory tool, one favorable to businesses in a Lochner v. New York sort of way. How would you (or Gora) respond to that?

Adler: There is no question that the Roberts court has been very aggressive in striking down government limitations on speech. This has been true across the board, both in cases related to business (including commercial speech cases) as well as those that have nothing at all to do with business (such as cases involving offensive protests or videos). I won’t speak for Joel, but to me the idea that the First Amendment has become a Lochner-esque tool is quite overwrought. Governments at all levels still have substantial leeway in regulating economic activity as they see fit. Thus far, the only constitutional limitation the Roberts court has recognized is that some measures that affect speech are subject to heightened scrutiny. While this may constrain the ability of the government to adopt speech-related measures, it has had minimal effect on government regulatory policy more generally.

Question: In his article on employment law and the Roberts court, Matthew Bodie concludes that the “employment law jurisprudence of the Roberts Court can be characterized as pro-business, anti-litigation, and even anti-employee.” Against that backdrop, he counsels employment law scholars to “recognize this and develop their own theories of private workplace management to counter the Roberts Court’s approach.”

Can you (or Bodie) provide a sketch of what such an approach might look like? (Presumably, such theories, if they were to be effectuated, would have to await the arrival of a newly-constituted court.)

Adler: I think there are multiple potential approaches that might address this concern, most of which would need to be embraced by Congress in order to be successful. This is because the court has generally followed Congress’ lead. Further, as several chapters in the book suggest, the Roberts court is not particularly sympathetic to plaintiffs’ attorneys, but has shown itself deferential to human-resource specialists. This would suggest that, barring legislative initiatives, it might be more profitable to focus on influencing norms within human resources than pursuing aggressive litigation strategies.

Question: What is one to make of DIRECTV, Inc. v. Imburgia, in which the majority, in an opinion by Justice Stephen Breyer (joined by Justice Elena Kagan and four others), held that the Federal Arbitration Act pre-empted a state court from refusing to recognize enforce a class action waiver in an arbitration clause? Notably, Justices Clarence Thomas, Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Is this a case of two liberals being “anti-consumer” or four conservatives being “pro-business”? If not, how might one best consider this ruling insofar as it relates to the Roberts court and business?

Adler: I think this case reflects multiple currents on the court. On the one hand, the court’s conservatives (except for Justice Thomas) are generally supportive of pre-emption. While the court’s liberals have often been more skeptical of pre-emption, some, like Breyer and Kagan, appear willing to follow the court’s prior precedents concerning the scope of FAA pre-emption. More broadly, however, as Rick Hills argues in his chapter, the court’s overall approach to pre-emption has not been consistently pro- or anti-business, and appears to be driven by other concerns.

Question: Justice Antonin Scalia wrote the majority opinion in Michigan v. Environmental Protection Agency. In that 5-4 case, the court held that the EPA acted unreasonably when it failed to consider costs in determining whether it was appropriate to regulate electric utility steam generating units. In her dissent, Kagan declared that the majority opinion “deprives the Agency of the latitude Congress gave it to design an emissions-setting process sensibly accounting for costs and benefits alike.”

In your essay on the Roberts court and environmental law, you write: “The aggregate effect of pro-business decisions on environmental law and future environmental litigation has been quite meager, while the less business friendly decisions could have substantial legal and practical consequences for many years to come.” In light of that observation, where on the spectrum does Michigan v. EPA fall?

Adler: Michigan v. EPA is probably among the most significant business victories in environmental cases, particularly if it is understood by lower courts to require consideration of cost across the board. On the other hand, the court’s opinion stops well short of requiring agencies to quantify regulatory costs, let alone to perform any sort of formal benefit-cost analysis, so the decision is unlikely to chill much regulatory activity. Indeed, the EPA regulation at issue in Michigan was ultimately upheld on remand, so the decision had relatively little practical effect. The pro-business or anti-regulatory effects of this decision are swamped by the pro-regulatory effects of a decision like Massachusetts v. EPA.

Question: Can you say a few words about your sense of Charles Beard’s famous book, “An Economic Interpretation of the Constitution of the United States”?

Adler: I was never particularly convinced by Beard’s account. There is no question that the Constitution creates a governmental structure in which business groups are able to pursue their interests, often quite successfully, but I think his argument that the Constitution should be understood as serving the financial interests of the framers is not particularly compelling, particularly in light of subsequent work.

Question: I understand that your next book is titled “Let Fifty Flowers Bloom” (Cambridge University Press). Is that correct, and if so, can you give us a nutshell summary of the book?

Adler: Yes, the working title is “Let Fifty Flowers Bloom: Environmental Federalism for the 21^st Century.” The book builds on my work on federalism and environmental policy and makes the argument for re-evaluating the federal-state balance in environmental law. I note that federal environmental laws were not always enacted for the reasons that we think, that state governments have often been more aggressive environmental regulators, and that rationalizing how we divide environmental matters among different levels of government could help produce more effective and equitable approaches to environmental concerns. If I can keep on schedule, it should be out next year.