Roberts court isn't all about business

The decisions issued by the U.S. Supreme Court in its most recent term, which ended June 30, should definitively put to rest the notion that the Roberts court is reflexively "pro-business." Although companies were victorious in a number of cases, they suffered losses in some of the term's most significant rulings.

This term, the court issued 22 decisions in business cases - which we define as those with a business on one side and either an individual or a government entity on the other. Excluded are cases in which one corporation sued another, with the exception of Halliburton Co. v. Erica P. John Fund, in which a nonprofit organization filed suit in its capacity as a shareholder.

The Unanimous Cases

Of the 11 cases that were decided unanimously, nine came out in favor of corporate interests. But most of these decisions were quite circumscribed. They included, for example, a narrow preemption case (Northwest Inc. v. Ginsberg); a decision about the proper procedural vehicle for enforcement of a forum selection clause (Atlantic Marine Construction Co. v. United States District Court); and a ruling that the Fair Labor Standards Act does not require employers to pay employees for time spent donning and doffing their protective gear (Sandifer v. United States Steel Corp.). While these decisions are helpful to business and provide useful guidance to the lower courts, they cannot be said to change the legal landscape.

The few unanimous wins that were broader in scope followed predictably from precedent. Daimler AG v. Bauman, for example, is a significant win for the business community. In a decision authored by Justice Ruth Bader Ginsburg, the court ruled that California may not exert general jurisdiction over the German parent of an Argentine company in a suit brought by Argentine nationals arising from events that took place exclusively in Argentina. But that outcome is hardly surprising in light of the court's reluctance in recent years to make the federal courts a forum for foreign disputes, as well as its 2011 ruling that a corporation can be subjected to general jurisdiction only in a state where it is "at home." Daimler is an uncontroversial decision that seems driven by comity and prudential concerns, and not by a desire to advantage corporate interests.

Finally, one of the most significant unanimous cases this term was a business loss. In Mississippi ex rel Hood v. AU Optronics Corp., the court held that class actions brought by state attorneys general cannot be removed to federal court under the Class Action Fairness Act.

The Divided Cases

In the more controversial and generally more significant business cases, the results were decidedly mixed. Of the 11 divided decisions, six favored business interests - and even that tally overstates the corporate success record, because it includes Halliburton, a technical victory at best. The Halliburton majority declined to overrule Basic Inc. v. Levinson and eliminate the presumption of reliance based on fraud on the market in securities fraud suits. Although the court held that defendants may attempt to defeat class certification by showing that the alleged misrepresentations did not affect the stock price, as a practical matter few defendants will be able to meet that burden.

The business losses in divided cases were substantial. The court rejected limits on class actions in Chadbourne & Parke LLP v. Troice, refusing to bar the plaintiffs' state law claims under the Securities Litigation Uniform Standards Act. It issued two decisions upholding substantial clean-air regulations promulgated by the EPA (EPA v. EME Homer City Generation and Utility Air Regulatory Group v. EPA). And the court extended the scope of whistleblower protection under the Sarbanes-Oxley Act in Lawson v. FMR LLC, holding that the statute covers employees of private companies that contract with publicly traded ones. These decisions will impact a broad range of commercial interests for decades to come.

By contrast, the impact of the term's two most controversial, high-profile business wins appears limited. In NLRB v. Noel Canning, the court addressed the president's power to fill temporary vacancies in U.S. government posts. The court's ruling addresses the scope of presidential authority, and its impact on other commercial disputes in the future will turn on the individual circumstances of each case and the makeup of the particular agency at issue. The business impact of the court's decision in the Hobby Lobby case - which attracted more attention than perhaps any other case in our analysis - is also more limited than headlines might suggest. The ruling applies only to a small subset of corporate concerns: closely-held corporations that seek religious exemptions to generally applicable federal statutes under the Religious Freedom Restoration Act.

Overall, a close look at this term's business docket belies the idea that the court is driven by reflexive pro-business bias. The justices decide the cases before them based on the facts and the law, and not the identity or corporate status of the parties.