Business in front of the Supreme Court

Marketplace Staff Oct 4, 2010

Business in front of the Supreme Court

Marketplace Staff Oct 4, 2010


Kai Ryssdal: This being the first Monday in October, the Supreme Court is back in session. The docket so far this term is loaded down with business-related cases — more than half, to be precise. We’ll be hearing from AT&T, Boeing, Wal-Mart and the U.S. Chamber of Commerce, to name but a few.

Right now, we will also be hearing from Slate’s Supreme Court correspondent Dahlia Lithwick. Dahlia, good to have you with us.

Dahlia Lithwick:Thank you for having me.

RYSSDAL: What can we say five years into the Roberts’ court about their feeling toward American business and American corporations?

LITHWICK: I think there’s been a lot of chatter that this is a very comparatively pro-business court. Not just that big business tends to win more often than not, but there was an interesting statistic in the New York Times today that said they’re actually also just really, really interested in business. So 40 of the 51 cases on which the Court has granted cert for this term have a corporation as a party.

RYSSDAL: That is to say that the Court’s going to hear their cases, granted cert?


RYSSDAL: Let’s go down the docket a little bit. The big one or one of the big business cases this year is this AT&T mobility case: It’s AT&T v. Concepcion, it’s all about this concept of preemption, right? Explain that for us, would you?

LITHWICK: Preemption sounds dreadful, but it’s essentially just a doctrine that asks the question whether federal regulations are going to trump or preempt state regulations in a given case. There was a big preemption year two years ago on the docket. Court took a break last year, and this year, they agreed to hear four preemption cases. So essentially these become very interesting cases, because they pit two very different conservative interests against one another. One is the states’ rights group. There is another interest that is big business, and this is where the Chamber of Commerce comes in these cases, that say no, we don’t want the federalists or the states’ rights argument to prevail here. What we want to have: One consistent federal law that businesses know what to expect.

RYSSDAL: There are a couple of others: There’s a whistle blower case, there’s an immigration case out of Arizona. These are issues that sort of keep coming up in front of the court, it seems, every year.

LITHWICK: That’s right. And the Arizona immigration case comes up again as a preemption case, as a question of whether the federal government has occupied the field in regulating this or whether the states have occupied the field. And it’s an incredibly interesting case, because it’s a bellwether for how the court may look at the big Arizona immigration law that’s in the pipeline. This is a narrower case; it essentially is about whether the state can sanction employers who hire illegals or whether the federal government is in charge of that kind of immigration policy. But I think it’s going to give you a very, very good sense of where this court is looking at these big, big, big issues that are barreling down upon them, like the big Arizona immigration statute.

RYSSDAL: Is Elena Kagan going to change the balance in any of these cases?

LITHWICK: Well, this is a very, very tricky area. As I said, the court agreed to hear four preemption cases. But Elena Kagan, because she was the solicitor general for the Obama Administration and she participated in the arguing and the briefing of these cases, has had to recuse herself in three out of the four cases. Now what that means is she can’t participate in these cases at all, and if these cases come out, as many suspect they will come out — four-four tied — then the lower court is simply affirmed. The Supreme Court has no opinion on this matter. And in these preemption cases where the corporations prevailed in the lower courts, what that means is at least for the short-term future, the corporations will have won these cases for a little while. Now this isn’t forever, this is just this term. But Kagan has recused herself in half of the cases that the Supreme Court has agreed to hear thus far this term.

RYSSDAL: Dahlia Lithwick, she covers the Supreme Court for Slate. Dahlia, thanks a lot.

LITHWICK: Thank you for having me.

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