The US Supreme Court’s decision in favour of Walmart in a sex discrimination suit has highlighted what many lawyers see as a now well-entrenched pro-business majority on the powerful legal body.
The court decided by 5-4 that the 1.5m women who were party to the suit had too little in common to form a class action to sue for damages alleging discrimination over pay and promotion by the retailer.
The 5-4 vote represented a familiar ideological split on the court, which has played out in numerous cases since John Roberts took over as Chief Justice in 2005.
The majority opinion was delivered by Justice Antonin Scalia, who was appointed to the bench in 1986 and has long been the most outspoken conservative judge on the court.
However, perhaps as significant in the Walmart case was the second leg of the decision, the unanimous 9-0 ruling that the plaintiffs could not claim back pay under the rules governing class actions under which they had sued.
“More often than not, the Roberts court is united rather than divided in cases affecting business interests,” said Jeffrey Rosen, a professor of law at George Washington University.
He said that in recent years 79 per cent of the business cases before the Roberts court have been decided by margins of 7-2 or better, in contrast to issues such as sex discrimination, where the judges have divided more on ideological lines. “The Walmart case represented the intersection of those two trends –unanimity in business cases and divisions in sex discrimination cases – and both trends were on display in the decision itself.”
Not all commentators agree that the Walmart case, or the court, can be crudely construed as pro-business, with Hans von Spakovsky, senior legal fellow at the Heritage Foundation, saying the decision “makes perfect sense”.
“These three women [in the Walmart case] wanted to be certified to represent 1.5m people – there was no common issue,” he said.
“The mistake people so often make is they look at the results and think ‘who did it favour?’ and they then say it must be pro- or anti-business based on that. The court often does what it’s supposed to do, regardless of who it favours.”
He pointed to a recent decision that revived a securities class action against Halliburton, the oil services company, as evidence that the court finds against business interests.
By contrast, a study by legal scholars for the New York Times which analysed 1,450 cases since 1953 concluded that the Roberts court had both agreed to hear more business cases, and found in favour of business interests more often.
The study found that the Roberts court had ruled in favour of business in 61 per cent of the cases before it, compared to 42 for all courts since 1953.
“When John Roberts took over the court (as Chief Justice in 2005), he was quite clear that the court has been overly hostile to business,” said Russell Wheeler, of the Brookings Institution.
The court has taken several decisions on the environment – including one this week rejecting an effort by states to set greenhouse emissions for power utilities – and securities fraud in favour of business.
But most of the court’s judges, beyond the solid conservative bloc, are against “regulation by litigation”, said Dr Rosen.
One of the court’s most controversial decisions was the Citizens United case, which gave companies free speech protection under the first amendment and lifted most of the limits on corporate donations to election campaigns.
Barack Obama has so far appointed two new justices to the court, both women, but without changing the court’s balance. His most recent appointment was Elena Kagan, considered a consensus builder rather than avowed liberal.
Mr Obama has said that the court in the 1960s and 1970s was considered to be too activist and too far ahead of public opinion. Now, the president said late last year, “conservative jurisprudence makes the same error”.
As a senator, Mr Obama voted against confirming Justice Roberts and was highly critical as president of the Citizens United decision.
Many in the Democratic party hope Mr Obama will take the next opportunity to fill a post on the Supreme Court to appoint someone with clear liberal credentials.
Whatever restraint he has shown so far in his appointments, his party’s liberal base will doubtless cite the stream of decisions in business’s favour next time there is a vacancy to be filled.
Additional reporting by Matt Kennard