Erwin Chemerinsky, dean of the law school at the University of California, Irvine, has penned an op-ed for The New York Times repeating the old saw that the U.S. Supreme Court is a “pro-business” court. Dean Chemerinsky’s fundamental misconception is on display right up front:
A majority of the justices seem to believe that it is too easy to sue corporations, so they narrowly construed federal laws to limit such suits.
One of Chemerinsky’s major academic contributions has been to analyze the Constitution through the lens of interest group politics, which occasionally leads him, myopically, to see legal decisions as politically motivated even where they are plainly justified by the legal materials.
Not only that, but in his litany of “pro-business” decisions, he conveniently forgets the most recent arbitration decision of the Supreme Court, Oxford Health Plans, a unanimous decision of the Court upholding the decision of an arbitrator allowing for class-action arbitration against a major health insurer. The Supreme Court issues only a handful of decisions each term, and even fewer “business” cases, so it is quite unlikely Dean Chemerinsky was unaware of Oxford Health Plans. But Oxford Health Plans is a counterexample to his thesis, and reasonable scholarship, even reasonable advocacy, should have included it.
Is the Roberts Court pro-business? A more fair reading of recent cases indicates that the Court is less concerned with the identity of the plaintiff and the defendant in any given civil dispute as it is with enforcing the plain meaning of congressional statutes and agreements between parties. In Oxford Health Plans, again, the Court reached an “anti-business” decision by enforcing the good faith contractual interpretation made by an arbitrator. In Bowman v. Monsanto, the seed patent case, the Court ultimately enforced the plain terms of a contract that a farmer was challenging on patent law grounds. In Italian Colors, again, the Court applied the plain terms of a contract in the class action waiver context.
In each of the cases Chemerinsky has identified, there was a contract between two parties, one of the parties sought to wriggle out of the contract or get a special exemption, and the Supreme Court stifled that effort. It is entirely unfair—and Dean Chemerinsky should know that it is unfair—to interpret the decisions of the Supreme Court in a manner to suggest that they are simply partisan hacks on the dole of “Big Business.” It is better to praise or critique their decisions on legal grounds rather than on the grounds that Chemerinsky simply doesn’t like the winners but likes the losers.
Certainly, calling the Roberts Court pro-business raises another question: In unanimous “pro-business” rulings (and there were several last term), what do we say about Justices Kagan, Sotomayor, Ginsburg, Breyer, or Kennedy? Are they selling out? Are they stupid? And what might this phantasmal pro-business bent tell us about the Court striking down part of the Defense of Marriage Act? Would Chemerinsky inexplicably turn around and claim that in that case, the Court was being principled?
Other than the say-so of the commentator, there is no clear way to identify when the Court is acting nefariously and when it is acting in a principled manner. It is always better to assume an honorable intent and to address the legal issues on their merits.
According to a Rasmussen poll released this week, American support for the Supreme Court has just reached an all-time low. With prominent law professors questioning their motives at every turn—even accusing them of placing interest group politics above the Constitution—it is no wonder.