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The Business of the Supreme Court Is Business

As even the commercial-speech evolution of the mute Clarence Thomas fairly shouts, this is one business-friendly Supreme Court.
From the 1860s until the 1930s, the court sat in the Old Senate Chamber of the U.S. Capitol. (PHOTO: PUBLIC DOMAIN)

From the 1860s until the 1930s, the court sat in the Old Senate Chamber of the U.S. Capitol. (PHOTO: PUBLIC DOMAIN)

When a recent study listed both U.S. Supreme Court Associate Justice Samuel Alito and Chief Justice John Roberts as having cast more pro-business votes than Clarence Thomas, some Court-watchers were surprised that the famously quiet justice wasn’t on top. After all, the same year the Citizens United case was decided, Thomas was a featured speaker at the Heritage Foundation’s annual fundraiser and one held by the Koch brothers. But whether they’re out-Thomasing the longer-tenured Thomas or not, the conservative majority on the high court clearly ascribe to the mangled dictum of another silent type, Calvin Coolidge: “the business of America is business.”

"How Business Fares in the Supreme Court," the Minnesota Law Review article by professors Lee Epstein and William Landes and federal judge Richard Posner, concluded that regardless of who on the court is friendliest to business, the court as a whole is among the friendliest on recent record. After a nadir during the 1960s—“the heyday of the Warren Court”—the court has become progressively more business friendly, the authors write, with “the Roberts’ Court ... much friendlier to business than either the Burger or Rehnquist Courts, which preceded it.”

That’s been especially true, they note, in cases where businesses have felt they’ve been done wrong by lower courts.

“The Court is taking more cases in which the business litigant lost in the lower court and reversing more of these," Epstein and Landes write, "giving rise to the paradox that a decision in which certiorari is granted when the lower court decision was anti-business is more likely to be reversed than one in which the lower court decision was pro-business.”

As conservative legal commentator Horace Cooper told CNN this week, speaking in the context of affirmative action but offering a view into the business orientation, too, "The law isn't about helping oppressed and downtrodden people get justice in a system tilted against them. Justice Thomas has been reminding people that it is not the role of the court to undo unfairness but to literally use the rules: Call a strike a strike and a foul a foul." (That’s similar to what Chief Justice Roberts said at his confirmation hearings in 2005: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”)

Two recent cases highlight this approach that eschews outwitting bosses through a courtroom detour.In Comcast Corp. v. Behrend, the court in a now routine 5-4 decision rejected the $875 million in damages a group of Philadelphia-area subscribers sought from the cable company, ruling that the plaintiffs did not provide enough evidence to justify their suing as a class. This case had the added pro-business impact of reaffirming the 2011 case of Walmart v. Dukes, another huge case thrown out by the court. On Monday, in two cases looking at the nexus of employment and civil rights, Thomas was part of the majority that made it harder for employees who feel they’ve been discriminated against in the workplace to pursue a legal remedy or to claim retaliation from reporting discrimination.

According to a table in the study rating justices’ votes in cases with a business interest between 1946 and 2011, Alito sided with business litigants .630, followed by Roberts at .587, and then Thomas at .549. Justice Anthony Kennedy comes next with .507, and Scalia is fifth among long-sitting current justices at .499. (Dead last in the historical rankings was Abe Fortas, an ironic finish given that his off-court friendship with a financier ultimately led to his resignation from the court.)

Given his almost unbroken silence on the job (the title of my 2001 unauthorized biography of Clarence Thomas is Silent Justice), the justice’s evolution into a warrior for (commercial) free speech demonstrates the court’s sotto voce stance for business rights.

In a symposium on Justice Thomas’ First Amendment Jurisprudence sponsored by the First Amendment Center 11 years ago, attorney Bruce E. H. Johnson said that after a somewhat tentative start in cases dealing with commercial free speech, Thomas has become “a consistent supporter of full constitutional protections for commercial speech. Justice Thomas has made a long intellectual journey, from weakened and inconsistent protections under Central Hudson in his early years, to a robust application of [its] analysis” in subsequent cases, adding, “As Thomas had commented during his confirmation hearings, ‘Well, I think that speech—we value all of our speech.’”

That was 2002, seven years before he joined the majority in the famous/infamous  "corporations are people, too" decision of Citizens United v. Federal Election Commission, in which the Court held that a corporation had a First Amendment right to spend money for or against political candidates. (Three years later, Thomas and company were again in the majority as they quickly upheld Citizens in a case that reversed a Montana ban, approved by its voters in 1912, on political campaigning by corporations.)

In 2011, David L. Hudson, Jr., of the same First Amendment Center, wrote of the justice he calls “the Court’s ultimate originalist:” “Sometimes, Thomas’ positions cause him to advocate for greater protection for certain types of speech, such as commercial speech and campaign finance as speech. Other times, Thomas’ views would dramatically curtail First Amendment freedoms—student speech, prisoner speech and the Establishment Clause. Suffice it to say, Thomas has gone his own way in many areas of First Amendment law.”

When Thomas does speak, which is often to groups of students, he speaks freely.

Taking questions from students at Florida’s Stetson University College of Law in 2010, Thomas said, referring to Citizens United, “I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company.... These are corporations.”

Explaining further, he said, “If 10 of you got together and decided to speak, just as a group, you’d say you have First Amendment rights to speak and the First Amendment right of association. If you all then formed a partnership to speak, you’d say we still have that First Amendment right to speak and of association. But what if you put yourself in corporate form?” he asked, rhetorically, but clearly implying the right would—and should—remain the same.

In retrospect, it probably hasn’t helped Thomas that at the time George H. W. Bush nominated him, the president called the 44-year-old government lawyer and short-term federal appellate court judge “the best-qualified man for the job.” It also didn’t help that commentators immediately assumed—and wrote—that Clarence Thomas would be a vote-in-lock-step clone of the intellectually formidable Antonin Scalia.

Even though Thomas rather quickly gave evidence of his desire to be his own man, the assumptions continue. As recently as this year’s White House Correspondents’ Dinner, host Conan O’Brien joked, “The Supreme Court seems divided over same sex marriage. The liberal justices favor it, while the conservatives oppose any lifelong sacred union between two men—unless, of course, it’s Antonin Scalia and Clarence Thomas.”

One of the most-experienced Thomas-watchers is Fox News correspondent Juan Williams, who has been writing incisive commentary about Justice Thomas for decades. Williams, who began as somewhat of a skeptic, now lauds Thomas. As he wrote in a 2011 Fox News commentary: “His jurisprudence has added new racial dimensions to conservative legal thought and forced new strategic thinking among liberals. He has made his imprint on the Court, on conservatism and on the black experience in America.”

Less smitten with Justice Thomas is Jeffrey Rosen, legal editor of The New Republic and a law professor at The George Washington University. Writing in TNR in 2011, the same year as Williams’ piece, Rosen argued the five-vote bloc wasn't a monolith: “Thomas’s social conservatism appears to be at least partly personal: He shares the Tea Party movement’s hostility to Washington elites and spends the summers driving around the country in a motor coach. ‘Someone told me the best people in the country ... are in the RV parks,’ he once told Rush Limbaugh. ‘I meet them at truck stops, rest stops. Those are my kind of people.’”

Given his weight of votes, one would have assumed he was talking about businesspeople.