Pro-Business Myth

For a preview of the Supreme Court's October Term 2008, click here.

On July 23, the Senate Judiciary Committee held a hearing on the Supreme Court's business cases titled "Courting Big Business." A related press release from Committee Chairman Patrick Leahy declared that recent Supreme Court decisions such as Exxon Shipping Co. v. Baker "have not only allowed some corporations to evade justice but have provided pro-business shields to some of the nation's largest corporations."

The perception is understandable, given high-profile cases such as Exxon, Riegel v. Medtronic and Stoneridge Investment Partners v. Scientific-Atlanta, all of which came out this term in favor of business interests, made headlines in the popular press and garnered some measure of outrage from consumers. Such cases have led to stories such as Jeffrey Rosen's "Supreme Court, Inc." in the New York Times--the theme of which is evident from its headline.

Revisiting Riegel

The issue of access to the court also is addressed in the Supreme Court's focus on federal pre-emption. It addressed pre-emption last term most notably in Riegel, in which the court barred claims against the manufacturers of medical devices that comply with federal regulation.

"Part of the point of [next term's] Wyeth v. Levine, and Riegel before it, is that an extremely high percentage of new civil case filings in federal court are drug or device related, partially as a result of the Class Action Fairness Act," says David Gossett, a partner at Mayer Brown. "Surely at the back of people's minds is, how many cases against manufacturers of drugs could be filed in any given year, and how quickly would that slow the federal court system to an entire halt?"

Stare Decisis Deference

This "nuts and bolts" approach manifests itself in the court's adherence to stare decisis. "Chief Justice Roberts is a big precedent freak," Kiernan says. "This Supreme Court has not been an overruler of prior law even though they have their five-vote conservative bloc. The first thing they do is look at the precedent."

It is in the tougher cases that the court's deference to prior cases becomes clear. This idea is expressed in last term's John R. Sand & Gravel v. U.S., in which the 7-2 majority stuck with 1880s-era precedent it noted was "anomalous." The ruling said the Federal Circuit must always consider the timeliness of filings when considering claims against the federal government, even if the government waives the issue. In Justice Stephen Breyer's majority opinion he noted, "To overturn a decision settling one such matter simply because we might believe that decision is no longer 'right' would inevitably reflect a willingness to reconsider others. And that willingness could itself threaten to substitute disruption, confusion and uncertainty for necessary legal stability."

Associate Editor

Melissa Maleske

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