Following last week's victory by the U.S. Chamber of Commerce in NLRB v. Noel Canning and today's devastating rulings in Harris v. Quinn and Burwell v. Hobby Lobby, two things are absolutely clear about this Supreme Court Term. One, it's once again been a very good Term for the Chamber. And, two, it's been an even better one for the business community writ large.
Let's begin with the Chamber. As we have since 2010, Constitutional Accountability Center has released an end-of-Term report on the Chamber's Supreme Court activities. Following the Chamber's victory in Canning, the Chamber finished off another strong Term with 11 wins and 5 losses, solidifying its overall success rate before the Roberts Court at 70% (85 wins, 36 losses)--a number far higher than its rate before the late Burger Court (43%, 1981-1986) and the stable Rehnquist Court (56%, 1994-2005). Looking beyond the numbers, this Term was defined by a confident Chamber staking out very aggressive positions in many of this Term's biggest cases--either as a party or as an amicus--resulting in partial victories that may not go as far as the Chamber wanted, but still move the law in a distinctly pro-business direction.
However, the Chamber cases alone don't tell the whole story of the Court's business docket. For instance, the Chamber rarely gets involved in cases that pit businesses against one another. In addition, it sometimes steers clear of labor disputes, as well as cases of interest to only a subset of the business community. Therefore, if we take account of the entire business docket, including cases without Chamber involvement, such as Harris and Hobby Lobby, we see that it was, once again, a great Term for big business at the Roberts Court--made all the more so by today's troubling rulings in Harris and Hobby Lobby.
In Harris, the Roberts Court used a flawed interpretation of the First Amendment to undermine nearly 40 years of precedent and strike a serious blow to organized labor. Under decades-old Supreme Court precedent, the Court has allowed public sector unions to collect fees from non-union workers to cover the costs of a union's bargaining activities on behalf of both union and non-union workers alike. In his majority opinion for a sharply divided Court, Justice Alito sided with the National Right to Work Legal Defense Foundation, rejecting this longstanding practice when it comes to home health care workers, and seriously threatened public sector unions throughout the country.
In Hobby Lobby, the Roberts Court extended corporate personhood beyond the holding in Citizens United and, for the first time in our nation's history, conferred upon for-profit corporations the individual, human right to the free exercise of religion. In effect, the Court said that corporations can pray, and, more troubling still, that the owners of those corporations can impose their religious beliefs on their employees even in the face of contrary federal laws. Because of today's decision, the religious owners of Hobby Lobby can safely ignore the Affordable Care Act's contraception mandate and deny their female employees contraceptive coverage. Tomorrow, other religiously motivated business owners will no doubt seek exemptions from still other federal laws, including, perhaps, important civil rights protections.
In the end, in both Harris and Hobby Lobby, the Roberts Court is doubling down on the mistakes it made in Citizens United, saying that corporations can pray and that the business community and its allies can use the First Amendment to unsettle well-established precedent and flout important federal laws and regulations. This development--coupled with the Chamber's longstanding success before the Roberts Court and the anti-regulatory bent of the Court's conservatives (generally)--represents an ongoing and serious threat to the progressive achievements of the twentieth and twenty-first centuries and raises the stakes in the Court's business cases moving forward.
This Supreme Court term lacked the blockbuster rulings of recent terms in cases involving voting rights, marriage equality, and the overall constitutionality of the Affordable Care Act. But quietly again it was a very big term for large corporations as the business community's long-term investment in the law and the courts continues to pay huge dividends.
Cross posted on Text & History.