In the aftermath of the health care reform case, in which conservative Chief Justice John Roberts cast a surprising vote to uphold the law, some Supreme Court observers, including Adam Liptak of The New York Times, have asked whether Roberts has permanently moved to the Court's ideological center. But a new report by the nonprofit advocacy organization Alliance for Justice indicates that the Roberts Court remains "far from apolitical," especially in cases concerning corporate power, a point often overlooked in the media.
In an article previewing the Supreme Court's upcoming term, Liptak writes that "[e]very decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court's conservative wing, has moved toward the ideological center of the court." The article recognizes the possibility that the health care reform decision, rather than presaging a move to the center, may have given Roberts room to maneuver even further to the right:
The term could clarify whether the health care ruling will come to be seen as the case that helped Chief Justice Roberts protect the authority of his court against charges of partisanship while accruing a mountain of political capital in the process. He and his fellow conservative justices might then run the table on the causes that engage him more than the limits of federal power ever have: cutting back on racial preferences, on campaign finance restrictions and on procedural protections for people accused of crimes.
But Roberts' strongly conservative record on corporate power is an even more powerful argument against the notion that he may have shifted in a significant way toward the Court's ideological middle. The Roberts Court remains possibly the most conservative Supreme Court in history in many areas, and its favoritism toward corporate interests is unprecedented. In the coming term, the Court will have multiple opportunities to build on recent decisions joined by Roberts that have made it harder for workers, consumers, and investors to pursue class actions, and there is little basis for supposing that Roberts will alter his views in corporate power cases.
As summarized by the Alliance for Justice in their preview of the upcoming term, if Roberts and the other conservative justices continue their trend of favoring powerful corporate interests in sharply split opinions, the Court could:
Provide a shield for corporations and other actors committing human rights abuses abroad (Kiobel)...Close the courtroom doors to class actions seeking redress for corporate malfeasance (Symczyk, Behrend, and Amgen)...Immunize employers who create a hostile work environment for women and racial minorities (Vance)...Allow lower federal court judges to punish debtors who go to court to challenge debt collectors' abusive practices (Marx) [and] Undermine the federal government's power to regulate water pollution (Georgia-Pacific, Decker, and LA County) [.]
These outcomes would be unsurprising. The U.S. Chamber of Commerce, which has taken the lead in advocating for corporate interests before the Court, is on a stunning winning streak, thanks in large part to support from Roberts and the other four conservative justices. As noted by Tony Mauro in The National Law Journal:
The NCLC, the litigation arm of the U.S. Chamber of Commerce, counted eight wins in the 13 cases last term in which it filed amicus briefs. In four of the other cases, the court did not reach the issue that the NCLC briefed, and in the 13th case, the Chamber did not take a side.
That adds up to a perfect winning record for the Chamber, yet another sign of the pro-business slant of the Roberts Court, in the view of the liberal Constitutional Accountability Center. "The October 2011 Term yet again demonstrates the roaring success the U.S. Chamber of Commerce has had before the conservative Justices on the Roberts Court," said Neil Weare, litigation counsel and Supreme Court fellow at the Center...Since the beginning of the Roberts Court in 2005, according to the center, the court has sided with Chamber positions 68 percent of the time.
In recent years, Roberts and the other conservative justices have sharply curbed the ability of victims of corporate wrongdoing to join together in class-action lawsuits. Supreme Court expert Dahlia Lithwick explained that although the types of lawsuits at risk in the upcoming term are vital to the enforcement of public interest law, the Roberts Court has already made class actions much more difficult for workers, consumers, and investors to pursue:
Courts--once the refuge of the little guy--have now become bastions to shelter the powerful instead.
Start, for instance, with class-action suits, which have long served a critically important function in preventing and punishing employment discrimination. In many cases, poorly paid individual workers cannot afford to file their own suits, or know of patterns of discriminatory behavior by their employers, or find legal representation for what look to be paltry damages; they also fear retaliation for reporting acts of discrimination. For years, class-action suits have tried to level the playing field for workers and their corporate bosses, leading to injunctive relief and huge changes in corporate culture. Even the Chamber of Commerce has conceded that class actions are more efficient than piecemeal individual suits. Yet in a series of cases beginning with AT&T Mobility v. Concepcion and Wal-Mart v. Dukes, both in 2011, the Supreme Court has systematically ensured that it will be more difficult for litigants to band together to bring such suits.
As the Alliance for Justice observes in its report, Concepcion and Dukes might not be the end of the Roberts Court promoting corporate interests. In fact, the Court's business docket this term may cement its reputation as the "One Percent Court."