Yet More Proof that the Supreme Court is Not Pro-Business

The Supreme Court has ruled against the Chamber of Commerce’s challenge to an Arizona law punishing businesses that hire illegal aliens by taking away their business licenses, and requiring use of E-Verify. The vote in Chamber of Commerce v. Whiting was 5-to-3, with the five “conservative” justices voting against the Chamber of Commerce. So much for the erroneous claim that the Supreme Court is dominated by pro-business conservatives.

Slate’s Dahlia Lithwick falsely claimed in 2009 that in the Supreme Court, “big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.” Supreme Court reporters for The New York Times, Los Angeles Times, and other liberal newspapers also peddle this same false caricature.

Contrary to Lithwick’s claims, environmentalists have won many cases, including one of the most economically-significant decisions ever — the 5-to4 decision in Massachusetts v. EPA (2007), which arguably opened the door to EPA regulation of virtually every human activity, on the grounds that virtually all activity (from industrial production to farming) emits carbon dioxide. That decision also created a special rule of standing to allow state attorneys general to bring lawsuits that would otherwise be thrown out as non-justiciable.

The Supreme Court allowed businesses to be sued even for products the FDA deems to be safe and effective, in Wyeth v. Levine (2009), in a ruling that legal commentator Ted Frank called the most anti-business decision in 43 years.

The Supreme Court has repeatedly broadened employers’ liability for discrimination against women. It steadily expanded the definition of sexual harassment: it overturned earlier limits on vicarious liability (in Faragher v. Boca Raton (1998)), allowed institutions to be sued based on the acts of non-employees (in Davis v. Monroe County (1999)), and rejected limits on lawsuits where there is no economic or psychological harm (Harris v. Forklift Systems (1993)). All these rulings overturned lower court judgments against plaintiffs. Only Justices Scalia and Thomas dissented in most of these cases, while some of these rulings, like Harris v. Forklift Systems, were unanimous.

Earlier this year, the Supreme Court broadened the reach of the 1964 Civil Rights Act’s ban on retaliation, one of the most fertile sources of litigation against businesses. As Ed Whelan noted, that ruling abrogated “all four” federal appeals court rulings on the subject, which had ruled in favor of the employer in similar cases. Indeed, the Supreme Court took a more expansive view of employees’ ability to sue businesses than even “Carter and Clinton appointeees,” who “decided it in favor of the employer.” That was part of a long line of rulings against employers by the Supreme Court, many of which were unanimous reversals of lower court rulings in favor of businesses, like Lewis v. Chicago (2010).