On Tuesday, the Supreme Court ruled that people who are injured or killed by the side effects of vaccines cannot sue vaccine manufacturers for alleged design defects. Another day, another victory in the Supreme Court for a business defendant—and another victory for preemption, the legal doctrine under which state law can be nullified when it conflicts with the language or purpose of federal law, in this case the 1986 federal vaccine compensation statute.
It was also yet another victory for the Chamber of Commerce of the United States. The Chamber, through its litigating affiliate, the National Chamber Litigation Center, regularly files briefs as an amicus curiae (“friend of the court”) in the Supreme Court on behalf of the business community—and it regularly prevails.
In a recent ACS Issue Brief, I crunch the numbers. Since Samuel Alito became a justice in 2006, the Court has decided 66 cases in which the Chamber of Commerce filed a brief. Of these cases, the party supported by the Chamber has won 46. That’s a very high win rate: just under 70%. It suggests that while the arguments in the Chamber’s briefs probably aren’t swaying the justices (amicus briefs rarely do), they are finding a receptive audience at One First Street.
Why has the Chamber been doing so well lately? In the Issue Brief and the article it’s based on, I look closely at five types of cases—involving arbitration, preemption, pleading standards, punitive damages, and employment discrimination—and conclude that the Court’s decisions in business cases are characterized by a skepticism about litigation as a mode of regulation. The Court isn’t driven by pro-business bias, exactly, but most of the justices share the same dim view of litigation that the Chamber repeatedly propounds in its briefs.
Bruesewitz v. Wyeth, the vaccine preemption case from Tuesday, is a representative example. Justice Scalia’s majority opinion turns a syntactical somersault or two on the way to construing the poorly drafted preemption provision of the federal vaccine statute to preclude design defect claims, even though the provision never mentions design defects. What really seems to drive the decision, though, is the Court’s conclusion that Congress made “a sensible choice to leave complex epidemiological judgments about vaccine design to the FDA and the National Vaccine Program rather than juries.”
Concerns about the cost and disruptiveness of jury trials clearly motivate Justice Breyer’s concurrence as well—which brings up another reason why the Bruesewitz case is representative of the Chamber’s success. The business defendant won, not by a narrow 5-4 margin, but 6 to 2. (Justice Kagan recused herself because she had submitted an amicus brief as Solicitor General—on the side of the business defendant.)
To be fair, I should note that yesterday, the party supported by the Chamber lost a preemption case, and the vote was unanimous. At issue was whether federal auto safety regulations preempted a state tort suit alleging that a car manufacturer should have installed lap-and-shoulder belts in the rear middle seats of its minivans. The preemption-related provisions of the federal motor safety statute are a mess; they make the vaccine preemption statute look like “See Spot run” by comparison. Tossing those statutory provisions to one side, the Court concluded that the no-lap-and-shoulder-belts-for-rear-inner-seats rule is not so central to the purposes of the federal scheme as to forbid state juries from demanding more. In coming to this conclusion, the Court declined to extend a rather convoluted precedent from 2000 that barred airbag-related tort claims. It’s hard to believe the justices perceived a great threat to auto manufacturers from lawsuits involving lap-only belts on rear non-outboard seats in minivans. At any rate, the party supported by the Chamber lost—and, as in Bruesewitz, the party supported by the United States won.
Going forward, which pending cases in the Court are of greatest interest to the Chamber (and to my hypothesis about the reasons for its overall success)? I’d nominate three: Wal-Mart Stores, Inc. v. Dukes, which addresses whether hundreds of thousands of Wal-Mart employees can be certified as a nationwide class in an employment discrimination action; Janus Capital Group, Inc. v. First Derivative Traders, which asks whether investment advisors and other service providers can be held primarily liable for misstatements in a corporation’s prospectus; and AT&T Mobility LLC v. Concepcion, which involves whether federal law preempts states from insisting that plaintiffs be allowed to arbitrate as a class. AT&T Mobility is particularly intriguing, as it features a trifecta of issues on which the Chamber has been scoring well: arbitration, preemption, and class actions (or their functional equivalent).
Further over the horizon, there looms The Big One. I refer, of course, to the various constitutional challenges to the federal health insurance reform statute that are wending their way to the high court. In the political arena, the Chamber of Commerce vigorously opposed the Affordable Care Act and is now pushing with equal vigor for its repeal. (Interestingly, some local Chamber affiliates seem unhappy with this position.) But in the judicial arena, the Chamber has yet to file a brief in support of the challengers, as far as I can tell from Brad Joondeph’s excellent ACA litigation blog. When the case reaches the Supreme Court, will the Chamber remain on the sidelines?
Savvy Court-watchers, including those at the Chamber, must be mulling over the following plausible scenario. What if the Court, by a 5-4 vote, does what Virginia district judge Henry Hudson recently did, striking down the individual mandate that sits at the heart of the reform act while allowing the rest of the act to stand? For economic libertarians: the greatest victory since Lochner. For insurance companies, still saddled with expensive regulations concerning rescissions and pre-existing conditions but suddenly deprived of the 15 million automatic new customers they thought they had: not so much. Might the insurance companies be urging the National Chamber Litigation Center to stay out of the health care fight?
This article is cross-posted at the ACS Blog and can be found here.