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Roberts, Alito regarded as allies to business on high court

WASHINGTON -- Business couldn't do any better than Chief Justice John Roberts and Samuel Alito on the Supreme Court.

One represented corporate interests as a private attorney; the other often sided with employers in lawsuits filed by workers. The prospect of the two on the Supreme Court signals to manufacturers and businesses that they will have allies in high places, say academics and business experts.

Beyond their decisions in individual cases, the Roberts court also has the potential to craft a consistent philosophy on business issues, something that several academics argue has been lacking in recent years since the departure of Lewis Powell in 1987. A former corporate lawyer, Powell built a reputation as a friend of business during his 15 years on the Supreme Court.

The court's highly selective docket for the current term will give Roberts and Alito, assuming the latter is confirmed, ample opportunity to shape the court. Among the critical issues for companies are the Supreme Court's decisions in antitrust cases, government regulation of land development, and the commerce clause.

Certain to catch any court-watcher's attention is how the new justices decide on whether to limit punitive damages in lawsuits against corporations.

''Both of them come out of a tradition of reading statutes narrowly. Both of them come out of a tradition of confining congressional power to the proper sphere," said Nathaniel Persily, a professor at the University of Pennsylvania Law School. ''In contrast to the more liberal members . . . I see them more in favor of business."

Roberts spent more than a decade with the private law firm of Hogan & Hartson, arguing on behalf of Toyota and health maintenance organizations. He wrote friend-of-the-court briefs for the US Chamber of Commerce, participated in its moot court and earned its endorsement.

Alito compiled a record of backing businesses in employee claims of sex and racial discrimination during 15 years on the Philadelphia-based 3d Circuit US Court of Appeals. Corporate cases were prevalent in the appellate court, whose jurisdiction includes Delaware. More than half a million business entities call Delaware their legal home.

In December, the National Association of Manufacturers endorsed Alito, saying, ''With justices like Judge Roberts and Samuel Alito on the Supreme Court, we can begin to reduce the exorbitant cost of our legal system that consumes 2.3 percent of our GDP."

Lawyers and court watchers will be keeping close tabs on where Roberts and Alito stand on punitive damages against corporations. Victor E. Schwartz, a lawyer and general counsel to the American Tort Reform Association, wondered what side Roberts and Alito would favor, especially since the court's coalitions have bucked the liberal-conservative lineup on social issues.

''The Supreme Court of the United States, in recent years, has held that the due process clause puts limits on the punitive damages awarded," Schwartz said. He noted that Justice Sandra Day O'Connor has favored limits, but justices Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg, and John Paul Stevens have not.

Roberts, as the new boss on the court, has an opportunity to steer the court on business issues after what one academic described as years of inconsistency. The post-New Deal court favored regulation and the 1970s court feared too much regulation, said David Skeel, a professor of corporate law at the University of Pennsylvania.

Going before the court

Chief Justice John Roberts and Samuel Alito could participate in several cases with far-reaching implications for business. Among the cases on the Supreme Court docket:

Illinois Tool Works Inc. v. Independent Ink Inc.: At issue is whether Illinois Tool Works violated the Sherman Antitrust Act, which limits monopolies, when one of its companies required the purchase of its unpatented ink with its patented printheads. Independent Ink makes patented ink that can be used with the printheads.

Domino's Pizza Inc. v. McDonald: John McDonald sued Domino's Pizza, contending that the company ended contracts with JWM Investments because he is black. McDonald, who is the president and sole shareholder of JWM Investments, said the termination of the contracts caused him emotional hardship. McDonald was not a party to the contracts, and the issue is whether someone in that capacity can sue citing discrimination.

Texaco Inc. v. Dagher, Shell Oil v. Dagher: Thousands of gas station owners sued Texaco and Shell Oil, arguing that the companies established a joint venture to set the price of products. The gas station owners claimed that the action was a violation of the Sherman Antitrust Act.

DaimlerChrysler Corp. v. Cuno: The State of Ohio gave tax credits and exemptions to DaimlerChrysler, and the company decided to build a vehicle-assembly plant. Plaintiffs in the case contend the credits and exemptions violate the commerce clause, with one state benefiting at the expense of others. The National Association of Manufacturers and the US Chamber of Commerce have filed amicus briefs in the case, urging the Supreme Court to review it. The NAM brief points out how companies and local jurisdictions rely on tax incentives.

Rapanos v. United States; Carabell v. Army Corps of Engineers: The United States filed civil charges against a landowner, accusing him of filling in wetlands in violation of the Clean Water Act. The government argued that the move was to make the land more attractive for development. The landowner contended that the wetlands were not adjacent to wetlands that would fall under the Clean Water Act.


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