Published in The Atlantic on July 2, 2018
The Supreme Court headlines last week were dominated—and rightly so—by Justice Anthony Kennedy’s retirement and the endorsement of President Donald Trump’s xenophobic travel ban. The former shifts the Court to the right for the next generation while the latter will be remembered as among the worst decisions since Korematsu upheld the internment of Japanese Americans during World War II. While the nation was focused on these major controversies, big business was quietly racking up a remarkable string of victories in the high court this term.
Most Americans pay attention to the Court only when it decides hot-button social or political issues like marriage equality, abortion, and immigration. As is often the case, however, this term the Court’s docket was packed with under-the-radar disputes with broad implications for business and the economy. So while Americans were debating whether the liberals or conservatives were winning, corporations and business interests were spending enormous resources to be sure that they came out once again on top.
And before you jump to thinking that this is yet another example of the right’s dominance of the Court, support for big business on the Court transcends which party nominated which justice, so many of these cases could have come out the same way if Obama’s pick Merrick Garland had been confirmed instead of Trump’s nominee Neil Gorsuch.
The stage was set in the first case the justices heard, on whether businesses can require employees to go to arbitration over job complaints. Even though employees often are forced to agree to arbitration clauses—one company sent its employees an email announcing that anyone who did not quit would be “deemed to have accepted”—the Court ruled for the companies. By making it harder for employees to join together in collective or class actions to recover for things like unpaid wages, the ruling was a windfall for business likely worth billions.
The streak continued through the term, on issues ranging from price fixing to overtime for workers. One measure of the term’s business-friendly tilt is the eye-popping success rate of the U.S. Chamber of Commerce, the self-proclaimed “Voice of Business.” The Chamber filed briefs in 10 cases this term and won nine of them. The Chamber’s victories limited protections for whistleblowers, forced changes in the Securities and Exchange Commission, made water pollution suits more difficult to bring, and erected additional obstacles to class action suits against businesses.
Only the geekiest of Supreme Court watchers monitor such cases. But the Chamber pays attention, and it pays off.
Corporate interests even won big in a number of cases that don’t appear at first to implicate business. A case striking down a federal ban on sports gambling was ostensibly about states’ rights and the powers of Congress, but the beneficiaries will include companies hitting the jackpot in the newly unfettered industry. A case requiring the government to obtain a warrant before tracking cell phones looks like a big win for personal privacy—but it will also bolster the arguments of tech companies looking to insulate themselves from government oversight. That’s why Apple, Facebook, Cisco, Google, Microsoft, and Verizon all filed a brief in the case arguing that a customer’s disclosure of data to tech companies should not be considered a waiver of privacy interests vis-a-vis the government.
The Court’s ruling last week that crisis-pregnancy centers can’t be compelled to post notices about the availability of abortion gives businesses a powerful new weapon in their fight against mandatory disclosure requirements in the workplace and on product labels. Now, state-compelled disclosures about “controversial” topics will be deemed inherently suspect—a new doctrine that greatly expands the First Amendment rights of corporations.
Indeed, corporations were among the primary beneficiaries of several of this term’s major First Amendment decisions. Although commentators called the justices’ decision in favor of the religiously-motivated baker who refused to sell a wedding cake to a same-sex couple “narrow,” the ruling was nevertheless a big win for corporations. Although the baker was the one with the religious views, the justices allowed his company, Masterpiece Cakeshop, Ltd., to claim the same First Amendment protections. Don’t be surprised when businesses cite this decision in the future when they refuse to provide a wedding venue to same-sex couples or fill contraceptive prescriptions.
And the landmark First Amendment case striking down “fair share” fees for public employee unions will reverberate in the private marketplace too. Public employee unions often push wages higher in the private sector as well, and if public employee unions are decimated, the entire working class suffers. Companies, however, benefit from being able to pay lower wages.
And while this term’s decisions on immigrants, gerrymanders, and wedding cakes are prompting many on the left to lament Gorsuch’s “stolen” Supreme Court seat, it is not just the conservative justices who tend to side with business. Six of the nine cases won by the Chamber this year were decided by margins of 7-2 or 9-0. Indeed, with the exception of Elena Kagan, the Chamber has endorsed the nomination of every current member of the Supreme Court.
Business benefits not only from the composition of the high court’s bench but also from the makeup of the Supreme Court bar. Over the past 30 years an elite cadre of lawyers has emerged who specialize in arguing before the Supreme Court. A 2014 study found that these lawyers have a disproportionate influence on which cases are heard. On cases about social issues, many elite advocates align politically. But corporate parties routinely draw from the entire field of these top-drawer lawyers. There is nothing untoward about lawyers having a range of clients. But there is little doubt that business clients, according to Justice Ruth Bader Ginsburg, “can pay for the best counsel money can buy.” And they often get what they pay for.
When former Bush administration Solicitor General Paul Clement appeared early this year on behalf of a foreign bank that had allegedly laundered payments to terrorists, he argued that corporations cannot be held liable for human rights violations in U.S. courts. At oral argument, Justice Elena Kagan asked whether corporations would be liable if they used “slave labor ... in the United States.” Clement admitted it was a “tough hypothetical” but that corporations would still be immune from accountability under international law in U.S. courts.
If that seems like an audacious argument, Clement nonetheless won his case. In this term, like most, big business won nearly all of theirs.