Since the publication of Jeffrey Rosen’s NYT magazine article, “Supreme Court, Inc.” – if not even before – claims that the Roberts Court is a “pro-business” court have become quite common. It certainly appears that the Roberts Court is more interested in business-related cases than its predecessors in business-related cases. Such cases, however defined, appear to occupy a greater proportion of the cases accepted for review, a trend no doubt augmented by diminished size of the Court’s docket. As the Court takes fewer cases overall, the same number of business-related cases will occupy a greater share of the Court’s work.

Most of those who charge the Robert Courts is “pro-business” no doubt mean something more, particularly that the Roberts Court has shown itself to be substantively “pro-business” in its decisions. But does this mean that the Roberts Court favors business litigants? Or that the Roberts Court’s decisions embody legal rules that are generally favorable to business interests. These are not the same thing. In the area of antitrust law, for instance, all but one of the cases decided by the Roberts Court involved one business suing another. So it is hardly surprising that a business litigant emerged victorious in each of these cases. Of greater relevance is that a business defendants won in each of these cases, but this does not resolve the matter, for the identity of the litigants in a given case are not necessarily a good proxy for the decision’s broader effects on various interest groups. Some business groups were among those supporting the petitioners in Massachusetts v. EPA, but this hardly shows that the Court’s decision in that case was “pro-business.”

In evaluating claims that the Roberts Court is “pro-business” it is also important to ask the question “compared to what?” Depending upon one’s baseline, the claim that a court is “pro-business” can mean quite different things. Among other things, it is important to consider whether the Court is moving the law in a more business-friendly direction, or simply refusing invitations to expand less business-friendly legal doctrines. There is a difference between eliminating a long-standing cause of action against business defendants and refusing to open the door to a new generation of suits against corporations. Both are, in a sense, “pro-business,” but they are quite distinct.

It is likewise important to consider whether in rendering “pro-business” decisions the Court is itself shifting the law in a pro-business direction or merely ratifying a pro-business legislative deal or administrative ruling. While the former may be evidence of an actual “pro-business” bias, the latter may illustrate nothing more than deference to the political branches, and may only yield “pro-business” outcomes so long as the political branches are sympathetic to business interests. Thus a highly deferential court may seem quite “pro-business” when upholding the decisions of Republican-controlled agencies, but much less so once a Democratic administration is in control. Data showing that the Court often sides with the Solicitor General’s office in business cases could well be evidence that the Court is more deferential to the SG than it is objectively “pro-business.”

Another distinction to keep in mind is whether the Court is adopting business-friendly default rules, or entrenching pro-business rules. So, for instance, there is a meaningful difference between decisions in which the Court adopts a statutory interpretation favored by business interests, and which Congress retains the ability to overturn (as with the Ledbetter case) and decisions in which the Court announces a substantive rule of constitutional law that benefits business (as in some of the punitive damages cases). In the former instance the Court may be doing nothing more than deferring to the legislature on whether to shift the law in a less business-friendly direction. In the latter, the Court is entrenching a substantive rule that will benefit business forever. Insofar as the vast majority of cases in which the Roberts Court has adopted “pro-business” outcomes are of the former variety, this should inform our assessment of the extent to which it is a meaningfully “pro-business” court, particularly as recent political shifts may portend a less business-friendly legislative and executive branch.

With these distinctions in mind, it is worth considering whether there is evidence of a pro-business orientation in the Roberts Court’s environmental decisions to date. Environmental cases may be worth particular attention as, unlike some business-related areas, we may be less likely to see cases in which the justices various ideological commitments are in conflict. That is, if we generally expect conservative justices to be more “pro-business,” we may also expect them to be less sympathetic to environmental regulation, thus making any tilt in the Court’s orientation easier to observe. Of course the usual caveats still apply. The Roberts Court has not considered all that many environmental cases thus far that impact business interests – between 11 and 14 depending on which cases one chooses to count (because some cases, such as Winter v. NRDC don't directly impact business interests), with four more still pending this term. Furthermore, viewing environmental cases as posing business interests on one side and environmental interests on the other is overly simplistic, as many environmental regulatory programs were supported by business and business interests often stand to gain from “pro-environmental’ rulings. Nonetheless, it is fair to say that in most environmental cases, the side we consider to be “pro-business” will be opposite from that advocated by most environmentalist groups. Finally, and perhaps most importantly, whether a given case embodies a “pro-business” outcome is an entirely different question from whether the decision was substantively correct. In my opinion, many of the cases in which business interests lost were correctly decided, but the merits of individual cases was not the focus of the symposium or my remarks.

So, looking at the environmental cases, what do we see? Taken together, the Roberts Court’s decisions in environmental cases show no evidence of a pro-business bias or orientation. The Roberts Court sided with business interests in only five of the eleven cases directly pitting business against environmental concerns (and only six of the fourteen cases if we include those cases in which business interests are only affected indirectly). If we step back from the numbers, and consider the substantive effects of the cases, there is even less evidence of a business-friendly approach. Most of the business wins occurred in relatively narrow cases that had little effect on pre-existing law, while several of the losses are quite dramatic and will have profound effects on economic interests.

Consider the three most significant business “wins” in environmental cases. In Exxon Shipping v. Baker the Court unanimously rejected Exxon’s claim that punitive damage awards were preempted by federal law and confined its holding limiting punitive damage awards to cases arising under the federal common law of maritime. The Court’s decision in NAHB v. Defenders of Wildlife imposed a significant limitation on the application of the Endangered Species Act to pre-existing statutory obligations, but in doing so it affirmed historical agency practice and long-standing lower court decisions on the question. In Rapanos the Court adopted a potentially significant limitation on federal jurisdiction over wetlands lacking a “significant nexus” to navigable waters, but also reaffirmed that U.S. Army Corps of Engineers and Environmental Protection Agency retain substantial authority to define “substantial nexus” so as to reclaim much of the jurisdictional ground that was lost. Insofar as these decisions are ‘pro-business” they are all quite modest. Solid base hits, to be sure, but not home runs.

Contrast the cases in which business emerged victorious with those in which business lost. The most important environmental case decided by the Roberts Court – indeed, one of the most important cases of any sort decided in the past three years – was Massachusetts v. EPA, in which the Court both loosened the standing requirements for litigants seeking greater federal regulation, expanded the scope of the Clean Air Act to cover the most ubiquitous by-products of industrial civilization and virtually required federal regulation of greenhouse gases. As a substantive matter, this case alone is more adverse to business interests than all of the business “wins” put together. Several singles don’t matter all that much if one’s opponent responds with a grand slam.

Yet Mass v. EPA was not the only loss for the business community. The Court rebuffed challenges to the application of environmental laws to various business activities, as in Duke Energy and S.D. Warren, and in others the Court either expanded the government’s ability to impose on business interests or limited the ability of businesses to challenge government regulations, as in BP America Production, John R. Sand & Gravel, and United Haulers. Other environmental cases in which business interests were not directly at issue, such as Wilkie v. Robbins could also be seen as embodying a substantive rule that is adverse to business interests. In Wilkie, for instance, the rejection of a Bivens cause of action for the BLM’s harassment of a ranch owner could well strengthen the hand of government agencies vis-à-vis resource-dependent industries that operate on federal lands.

There is no evidence of a “pro-business” orientation in the environmental cases decided by the Roberts Court to date, but there may be evidence of something else. One thing that is quite striking about the environmental cases is the rate at which the government was on the winning side. The federal or state government was victorious in nearly every case in which business interests lost. The one exception is Mass v. EPA in which the federal government’s position lost, but the cause of greater government regulation nonetheless advanced. Where business interests won, government interests were typically absent, or on the business side. So, for instance, in the NAHB case, the Court adopted the Bush Administration’s interpretation of the Endangered Species Act, and in Exxon Shipping the Solicitor General’s office did not file a brief. Rapanos is certainly an exception to this trend. Yet, as already noted, the decision reaffirmed broad regulatory authority to define the scope of federal jurisdiction. The feds lost in a Superfund case, Atlantic Research, but it is difficult to argue that the federal government’s broader interests were set back by the Court’s decision. The same could be said for the Court’s decision rejecting jurisdiction over a whistleblower suit under the False Claims Act in Rockwell.

In sum, there is no evidence that the Roberts Court has adopted a substantive pro-business orientation in its environmental cases – at least not in those decided thus far. This is a tentative conclusion, however. There are four environmental cases still pending this term, concerning the use of cost-benefit analysis, Superfund liability, the scope of the Clean Water Act, and citizen suits concerning the management of federal lands, and business interests could well sweep the table (though I consider this unlikely). Further, the lack of a pro-business orientation in the environmental context does not mean the Court is not more business-friendly in other areas, perhaps such as preemption or securities litigation. Yet while there are no signs of a business-friendly approach to environmental cases, there are signs the Court tends to side with the government. If such a conclusion is warranted, then whether the Court hands down business-friendly decisions may depend on whether the political branches are or continue to be receptive to business interests.