The Roberts Court & The Business Cases

Abstract

This is the Court, it is said, that Wall Street has fallen madly in love with. It is an absolute bull market at the Supreme Court. In fact, as the Court rose for the summer recess, one leading member of the United States Chamber of Congress Litigation Division was heard uncorking the champagne and quoting, from the perspective of the American business community: "It's our best Supreme Court term ever .... " As usual, one journey is beneath the surface, and that is the course we will travel today. I see a less monolithic pattern-certainly a richer mosaic-in these businessrelated cases than the above quote implies.

It is my suggestion that this is a Court that is not so much pro-business as it is massively skeptical of civil litigation, especially nationwide civil litigation. Much of this civil litigation is seen by the Justices as challenging and clogging the judicial system, and as creating what are seen as enormous pressures (especially with publicly held companies) to settle the cases. 3 This skepticism cuts across the usual ideological lines on the Court, as I hope to demonstrate very briefly.