Balkinization  

Monday, June 24, 2013

And the (1915, 2013) Winner is . . . Business

Mark Graber

            Today’s opinions from the Supreme Court highlight how the conservative majority is reverting to judicial practices before the New Deal, but not in the way many commentators expected.  The justices are not restoring ancient doctrinal categories or dramatically cutting back on civil liberties.  Rather, as was the case in 1915ish, the big winner is business.  When business is not involved, the judicial majority is often at least as liberal if not slightly more liberal than the rest of the ruling regime.
            As much historical scholarship has demonstrated, the Supreme Court before 1932 was often far more liberal than Congress or the President on what we now call civil rights and civil liberties issues.  During the first third of the twentieth century, the court struck down peonage laws, declared unconstitutional local ordinances mandating residential segregation, and voided a few restrictions on African-American voting.  Fourth, Sixth and Eighth Amendment law moved in more libertarian directions (often with more conservative than liberal support).  Of course, lots of lousy decisions got handed down from 1900-1932.  Nevertheless the general point is that on most civil rights and civil liberties issues, where business was uninvolved, the justices were at least as liberty supporting as any other institution in the national government.
            Mention the word “union,” however, and conservatives became the conservatives who have been reviled throughout history.  Unions for all practical purposes enjoyed a forty year losing streak from 1895 (In re Debs) to 1936 (Carter v. Carter Coal Co.).  The issue did not matter much.  Unions lost when the issue was federal judicial power to enjoin strikes, federal legislative power to prohibit yellow dog contracts, the scope of federal anti-trust laws (baseball was exempt, but not unions) and federal power to protect unions.  If there was a union on one side of the case, judicial conservatives voted with the other.
            Fast forward to today (or the past few weeks).  In cases where business is either uninterested or divided, the Roberts Court has no powerful affinity for conservative positions.  In the long awaited Fisher case, Justice Kennedy, Chief Justice Roberts and Justice Alito essentially asked the lower federal courts to take “narrow tailoring” a bit more seriously.  Grutter, a decision that cites business support for affirmative action, is reaffirmed.  This was far better than even most optimistic liberal commentators expected.  In United States v. Kebodeaux, we learned that Roberts, Kennedy, and Alito have no objections to congressional power requiring sex offenders to register where they reside, particularly where the sex offender was in the military.  Hard to see any business objection to that one.  As important, this term has had numerous cases involving non-business interests where one or more conservative justice has joined the liberals to form a majority for a moderately progressive outcome.  Think, for example, of Jardines (Scalia and Thomas join three liberals to declare the dog sniff an illegal search), the Arizona vote case (Roberts and Kennedy join the liberals to declare that federal law preempts Arizona’s requirement that persons produce proof of citizenship to vote) or Alleyne v. United States (Thomas joins the liberals to declare that facts increasing mandatory minimums must be found by a jury).
             The winner today, as in most days in the recent past, is business. All five conservatives torture a federal law in Vance v. Ball State University when concluding that people who direct work activities are somehow not supervisors.  The result is that when those people engage in racial (or sexual) harassment, the business which gave them supervisory responsibilities is not liable.  The pharmaceutical industry got a nice gift from the justices when in another 5-4 vote the justices in Mutual Pharmaceuticals v. Bartlett sharply limited state law remedies against inadequate warnings about design defects.  Finally, in University of Texas Southwestern Medical Center v. Nassar, the same five conservatives ruled that businesses are free to be motivated by a desire to fire people who complain about discrimination as long as that is not the only reason why employment was terminated.
            Perhaps the lesson of these decisions is that all of us spend too much time on grand constitutional law, where we have been waiting for the conservative apocalypse that has never occurred.  Business enterprise either has little stake in such issues as abortion, same-sex marriage or affirmative action or actually may lean somewhat in favor.  In a time of legislative gridlock, the real action is in statutory interpretation, preemption and administrative law and here, largely out of the public’s eye, is where the conservative revolution in law goes on apace.

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