Revisiting the Supreme Court’s “Pro-Business” Bias
Ed Whelan chimes in on the perennial debate with the most recent data:
1. In Staub v. Proctor Hospital, the Court, reversing the Seventh Circuit, ruled unanimously that an employer could be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision. Justice Scalia wrote the lead opinion.
2. In FCC v. AT&T, the Court, in a unanimous opinion by Chief Justice Roberts, ruled that corporations do not have “personal privacy” for purposes of a Freedom of Information Act exemption. The ruling reversed a Third Circuit decision.
In the third decision rendered today, Henderson v. Shinseki, the Court also ruled unanimously for the “little guy,” as it held, in an opinion by Justice Alito, that a 120-day deadline for a veteran to appeal an administrative denial of benefits did not amount to an absolute jurisdictional bar. The Court reversed a contrary ruling by the Federal Circuit.
(Justice Kagan did not take part in any of these cases.)
I’ve discussed the analytical incoherence of these “pro-business bias” claims in the antitrust context here and here; in that context, the argument is commonly raised but usually avoid serious claims that any specific decision was wrongly decided.