The Constitution, The Roberts Court & Business: The Significant Business Impact of the 2011-2012 Supreme Court Term

The 2011-2012 Supreme Court term created quite the media buzz. The Affordable Care Act cases and the controversial Arizona immigration law dominated the headlines. But the term also included other fascinating yet less sensationalized cases. The Court heard its fair share of criminal law controversies involving derelict defense attorneys and prosecutors as well as civil procedure disputes involving qualified immunity for witness in grand jury proceedings and private parties assisting the government in litigation. The justices also entertained arguments on a federal law allowing United States citizens born in Jerusalem to have “Israel” stamped as their birthplace on a passport. The Secretary of State refused arguing that the practice would inflame tensions in an already volatile Middle East. Another case pitted the First Amendment right to lie about receiving military honors against the Stolen Valor Act prohibiting that type of dishonest speech. A case from Montana hearkened back to 1889 and implicated the Equal Footing Doctrine – a Constitutional provision granting territory to states upon entering the Union. Texas crafted new electoral maps based on the 2010 census and soon found them scrutinized under the Voting Rights Act. In all, the term was extraordinary because most of its cases revolved around topics ripped from the headlines and touched on areas of public policy relevant to Americans in 2012 and beyond. The term was also compelling because of its impact on the business arena. The justices granted certiorari in fourteen business cases, eight of which were cherry picked for this article. Each case chosen covered a classic business law topic, generated strong interest within the business community, contained predominately business-focused facts, and had a connection to a business-related constitutional provision/amendment or statute. These eight cases provide the best glimpse into the Roberts Court’s most recent stance on topics important to the business community. This article evaluates these cases in depth and proposes the following business impact theory of the term: (1) the Court’s opinion in each case had as strong pro-business slant with business interests receiving fifty out of fifty-two potential votes. This slant is significantly different from the previous term where the Court unanimously voted against business interests several times; (2) these pro-business decisions did not occur in ordinary, run of the mill cases. Instead the impact of these decisions is magnified because they involved subjects critical to America’s economic recovery; (3) perhaps surprisingly, the Court’s liberal-leaning justices voted with the Court’s conservatives in twenty out of a possible twenty-two opportunities. They did so in cases that presented compelling arguments from both a conservative and liberal perspective and where the facts allowed for a strong four-justice dissent; (4) perhaps unsurprisingly, the Court proved willing to narrow or expand Constitutional provisions or state/federal statutes to reach its desired result. There appeared to be no concerted effort to adhere to a minimalist or living Constitutionalist philosophy. In the end, the results in the business cases of the term could prove to be a fluke. Or, they could indicate a pivot at the Court towards supporting business interests to a greater extent. Time will tell because the next first Monday of October is right around the corner.