- The Washington Times - Saturday, June 30, 2007

The narrow split between liberal and conservative Supreme Court justices was evident throughout the court’s most recent term, with one prominent exception: business cases.

Unlike the blistering ideological divisions stemming from cases about abortion, pay discrimination against women and the use of race in school assignments, justices often found common ground when ruling on commercial issues such as shareholder rights and antitrust law. Seventy percent of the 30 business-related cases decided by the court during the eight-month term that ended this week produced majority votes of 7-2 or greater.

The justices’ conformity in financial cases has resulted in a very business-friendly court. They have issued rulings that will make it harder to sue companies for securities fraud and antitrust violations, and have shielded businesses from large damage awards in tobacco lawsuits and other cases.

This “has been our best Supreme Court term ever,” said Robin Conrad, executive vice president of the U.S. Chamber of Commerce’s litigation group. Of the 15 cases decided this term in which the Chamber took a position, the court sided with the Chamber 13 times.

Maureen Mahoney, a Washington lawyer who has argued cases before the justices, said the court under former Chief Justice William Rehnquist was famously favorable to business, “but we now know that the Roberts Court is even better.” Justice Rehnquist served as chief for 19 years until his death in September 2005. He was replaced by John G. Roberts Jr.

Consumer advocates say the court’s pro-business decisions have weakened protections for ordinary Americans in a variety of areas, from banking to retailing.

“This court looks at big companies as its clients, rather than the citizens of the United States,” said Ed Mierzwinski of the U.S. Public Interest Research Group.

In a rare case of an ideological divide over a commercial dispute, the court ruled 5-4 on Thursday that manufacturers should have leeway to set minimum retail prices for their goods — a decision likely to favor manufacturers over smaller retailers.

The court’s pro-business tilt has significant implications for a high-profile case the justices have agreed to hear next term. The case centers on whether investors can sue investment banks, lawyers and other parties that helped companies such as Enron and WorldCom commit securities fraud.

Since the justices chose to make it harder for shareholders to sue over securities fraud in two cases this term, the outlook for the plaintiffs in that case isn’t great, lawyers said.

The justices appear to share the concerns of many business groups that excessive litigation places a burden on business and the U.S. economy, said Thomas Goldstein, a Washington lawyer who has argued cases before the court.

“The entire Supreme Court has a mistrust of lawyer-driven litigation,” said Roy T. Englert, a D.C. attorney at the Robbins Russell law firm. “The justices don’t see real injured people bringing claims, but lawyers seeking settlements.”

Court watchers note that the agreement on business cases is occurring even as the Supreme Court has become more divided. The number of 5-4 rulings jumped to 24 in the most recent term, up from 11 in the previous sitting, according to a tally by Mr. Goldstein’s law firm, Akin Gump.

“The ideological lines are sharper now than they have been in 20 years,” Mr. Goldstein said.

Yet while business cases made up almost half the court’s docket, they accounted for less than a third of the court’s 5-4 rulings.

Even cases that have provoked considerable rancor in the business world have been decided by lopsided votes.

Business groups staked out opposing sides in a key patent case that practitioners in the field said was one of the most important in decades. The case focused on when an invention is obvious and therefore not eligible for a patent.

Groups representing high-technology companies such as Microsoft Corp. and Hewlett-Packard Co. supported a tightening of patent standards, while pharmaceutical and industrial firms such as Johnson & Johnson and General Electric Co. advocated for the status quo.

But the justices decided the case unanimously, along the lines supported by the high-tech companies, ruling that a lower court had made it too easy to obtain a patent for inventions that didn’t deserve one.

Similarly, a separate patent case pitting Microsoft against AT&T; Inc. was decided 7-1.

Justice Ruth Bader Ginsburg noted the trend in remarks June 9 in Bolton Landing, N.Y.

“As usual, we disagreed less often and less intensely in cases falling on the business side of our docket,” she said.

Some business cases have divided the court along ideological lines such as a 5-4 ruling in May against a female employee of Goodyear Tire & Rubber Co. who had charged pay discrimination. That case, however, focused on civil rights law.

The court ruled against corporate America in just two cases, both dealing with the environment.

In one high-profile ruling in April, the court authorized the Environmental Protection Agency to treat greenhouse gases like other pollutants. In another case involving Duke Energy Corp., the court sided with environmental groups in a unanimous decision that strengthened rules requiring utilities to add modern pollution controls when they upgrade their plants.

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