Business Decisions

O'Connor Was Friendly to Business

By Carrie Johnson
Washington Post Staff Writer
Saturday, July 2, 2005

With yesterday's retirement of Supreme Court Justice Sandra Day O'Connor, business lost one of its most important allies.

Appellate lawyers and former clerks uniformly described O'Connor as sympathetic to the problems of business, voting to curb what she viewed as excessive financial awards to plaintiffs in the form of punitive damages and forcing prosecutors to prove that companies intended to break the law to win criminal convictions.

She frequently -- though not always -- sided with businesses to ensure that the federal government, rather than a hodgepodge of states, would be their primary regulator.

Experts say it is difficult to broadly characterize how judges vote on commercial cases, in part because the issues frequently cut across partisan lines and sometimes involve clashes within industry. Justices Antonin Scalia and Clarence Thomas, for instance, are ideologically conservative but take a strict view of the Constitution, which they say does not afford protection against enormous legal awards by juries.

Still, O'Connor's drive to limit what she called excessive damage judgments for plaintiffs, begun with a lone dissent in a 1991 case, made her a favorite of chief executives.

"If anyone up there could have been tagged pro-business, O'Connor would have been the one," said Christopher Landau, a former clerk and now a partner at Kirkland & Ellis LLP.

Advocates before the high court often kept O'Connor in mind as they crafted legal arguments and friend-of-the-court briefs related to business issues, said Carter G. Phillips, an appellate lawyer who regularly argues Supreme Court cases. The retiring justice cited arguments from businesses and the military in writing a major opinion upholding the legality of affirmative action.

Stanton D. Anderson, the chief legal officer at the U.S. Chamber of Commerce, the nation's largest business lobby, cited O'Connor's rulings that limited the kinds of illnesses to trigger the Americans with Disabilities Act -- and her determination that the federal government, not the states, regulate foreign commerce.

"That common-sense approach is going to be missed," Anderson said.

O'Connor's approach to business disputes was never completely one-sided. In the most recent high court case involving class-action lawsuits, O'Connor dissented from a majority opinion that made it easier to bring such cases in federal courts, which was what business interests had sought, Washington appellate lawyer Mark I. Levy said.

But the court, including O'Connor, also has voted to limit industry liability, as in a 2000 case where the court ruled, 5 to 4, that American Honda Motor Co. should not be on the hook for failing to install air bags in a car manufactured at a time when air bags were not required.

About 40 percent of the cases from the past two Supreme Court terms had direct consequences for business, according to an informal Chamber of Commerce study.

That pace is likely to continue, if not accelerate, said Quentin Riegel, vice president for litigation at the National Association of Manufacturers. The group counts 10 business cases on the court's docket for the next term, including whether a joint venture between Texaco Inc. and Shell Oil Co. violated antitrust laws in its pricing decisions. IBP Inc. v. Alvarez asks if employers must pay workers for time they spend putting on and taking off work uniforms and protective equipment.

Analysts say the White House could take the unusual step of naming a justice with a background in business affairs -- which was not the case with O'Connor, who had been a state legislator in Arizona.

No Supreme Court justice since Lewis F. Powell Jr., who retired in 1987, has regularly represented corporate clients in private practice. Powell worked at the Virginia law firm now called Hunton & Williams LLP and was president of the American Bar Association.

A few prospective candidates with such experience include John G. Roberts, who spent years arguing appeals for clients of the Hogan & Hartson LLP in the District; Edith B. Clement, who spent 16 years in private practice in Louisiana; and Michael W. McConnell, a veteran law professor who also did work for clients of the law firm Mayer, Brown, Rowe and Maw LLP.


© 2005 The Washington Post Company