Experts: Roberts, Alito Side With Business

ABC News
Experts: Roberts, Alito Side With Business
Experts, Academics Say Duo of Roberts and Alito on High Court Would Favor Business Interests
By DONNA CASSATA
The Associated Press

WASHINGTON - Business couldn't do any better than Chief Justice John Roberts and Samuel Alito on the Supreme Court. The prospect of the two on the Supreme Court signals to manufacturers and businesses that they will have allies in high places, say academics and business experts.

One represented corporate interests as a private attorney; the other often sided with employers in lawsuits filed by workers. Beyond their decisions in individual cases, the Roberts court also has the potential to craft a consistent philosophy on business issues, something that several academics argue has been lacking in recent years since the departure of Lewis Powell in 1987.

A former corporate lawyer, Powell built a reputation as business' friend during his 15 years on the Supreme Court.

The court's highly selective docket for the current term will give Roberts and Alito, assuming the latter is confirmed, ample opportunity to shape the court. Among the critical issues for companies are the Supreme Court's decisions in antitrust cases, government regulation of land development and the commerce clause.

Certain to catch any court watcher's attention is how the new justices decide on whether to limit punitive damages in lawsuits against corporations.

"Both of them come out of a tradition of reading statutes narrowly. Both of them come out of a tradition of confining congressional power to the proper sphere," said Nathaniel Persily, a professor at the University of Pennsylvania Law School. "In contrast to the more liberal members ... I see them more in favor of business."

Roberts spent more than a decade with the private law firm of Hogan & Hartson, arguing on behalf of Toyota and health maintenance organizations. He wrote friend-of-the-court briefs for the U.S. Chamber of Commerce, participated in its moot court and earned its endorsement.

Alito compiled a record of backing businesses in employee claims of sex and racial discrimination during 15 years on the Philadelphia-based 3rd Circuit U.S. Court of Appeals. Corporate cases were prevalent in the appellate court, whose jurisdiction includes Delaware. More than half a million business entities call Delaware their legal home.

Abortion and social issues dominate the public debate over the Supreme Court, but business matters make up a significant portion of the justices' work.

Of the businesses cases, "while some are constitutional cases, many are statutory interpretations where Congress failed to decide or a written statute it is impossible or difficult to tell what they meant," said Quentin Riegel, vice president for litigation at the National Association of Manufacturers.

In December, the association endorsed Alito, saying, "With justices like Judge Roberts and Samuel Alito on the Supreme Court, we can begin to reduce the exorbitant cost of our legal system that consumes 2.3 percent of our GDP."

Lawyers and court watchers will be keeping close tabs on where Roberts and Alito stand on punitive damages against corporations. Victor E. Schwartz, a lawyer and general counsel to the American Tort Reform Association, wondered what side Roberts and Alito would favor, especially since the court's coalitions have bucked the liberal-conservative lineup on social issues.

"The Supreme Court of the United States, in recent years, has held that the due process clause puts limits on the punitive damages awarded," Schwartz said. He noted that Justice Sandra Day O'Connor has favored limits, but Justices Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg and John Paul Stevens have not.

While the opinions of Roberts and Alito have been thoroughly dissected, Schwartz said there is only a limited amount of information that could provide a clue on how they would decide on punitive damages.

Roberts, as the new boss on the court, has an opportunity to steer the court on business issues after what one academic described as years of inconsistency. The post-New Deal court favored regulation and the 1970s court feared too much regulation, said David Skeel, a professor of corporate law at the University of Pennsylvania.

"The general thinking about Roberts and Alito, to the extent they have an effect, is they would tend to reign in the SEC's strict interpretation of major regulatory statutes," Skeel said.

One hurdle, however, is business' varied interests.

"Business isn't necessarily committed to the same principles," said John Coffee, a professor at Columbia Law School. "Federalism cuts for or against them."