Steven Lehotsky
Former Executive Vice President & Chief Litigation Counsel, U.S. Chamber Litigation Center


October 22, 2020


When it comes to an endorsement for a lifetime appointment to the Supreme Court, what the U.S. Chamber wants for America’s employers—all any litigant should rightly ask for of any court, of any judge—is to be given a fair shot. Judge Barrett would treat all parties before her fairly.

There is a persistent myth of a “pro-business” Supreme Court and “pro-business” justices. The fact is the overwhelming majority of business cases decided by the Court are completely lopsided affairs. The side of business—the side the U.S. Chamber supports—usually either wins big or loses big. The average vote in the Supreme Court cases the Chamber gets involved in (win or lose) is 7-2. That is often because the lower Court got it really wrong, and the Court corrects that error unanimously or close to it.

But the attention is often on the handful of close cases each term—the ones that are 5-4 or 6-3. Those are obviously the most controversial. Not necessarily the most important. But certainly, they are the most charged.

Of those cases, however, very few fracture the Court on ideological grounds. In recent terms, each of the conservative justices partnered with the four more liberal justices on a 5-4 business case. Sometimes our side lost those, and sometimes it won. And the Chief Justice and either Justice Gorsuch or Justice Kavanaugh joined with the more liberal justices to form 6-3 outcomes, too. Again, sometimes business won and sometimes it lost.

Let’s broaden the historical lens and look at one of the supposedly most pro-business judges of all time: Justice Scalia. He was pretty much a 50-50 vote in a close business case. Our side would win his vote on close class action and arbitration issues. But we would lose it on close preemption and punitive damages issues.

The only reason conservative justices like Justice Scalia are wrongly accused by some as “pro-business” is that there are other Justices in the history of the Court that were so anti-business that someone who is about 50-50 odds in a close case could seem “pro-business” by comparison.

And what the folks who assert that there is a “pro-business” court are really looking for is to stack the odds against businesses because they are businesses. Fortunately for everyone, that’s not the way the rule of law works in this country.

What we see in Judge Barrett’s distinguished background is a steadfast commitment to the rule of law, as well as fidelity to the Constitution and the text of the laws of the United States. She also shares a commitment to the principles of our free enterprise system. These are the reasons the Chamber endorsed Judge Barrett to be an Associate Justice of the Supreme Court.

Before the Chamber’s endorsement we reviewed Judge Barrett’s opinions in business cases as a Circuit Judge on the Seventh Circuit. We saw decisions in favor of businesses and some decisions against businesses.

But one of the positive trends that we see in her opinions is that she does not countenance meritless class action lawsuits that serve as a tax on employers, impeding economic growth and job creation. Just the other day, the Chamber’s Institute for Legal Reform released a study on the financial harm that the tort system inflicts upon small businesses, which bear a disproportionate burden from the tremendous costs of these meritless class action lawsuits. In several cases she enforced limits against abusive class action lawsuits, such as class action lawsuits where plaintiffs cannot show any injury whatsoever, refusing to let the judicial system be used as means to divert money for plaintiffs’ lawyers’ fees where there is no actual harm to anyone.

She also has a sterling scholarly record as a law professor, where some of my colleagues at the Litigation Center benefited from her fair and evenhanded approach to teaching. To be a good lawyer you have to know the other sides’ best arguments, to understand them, to be able to confront their strengths and your own weaknesses. And to be a good law professor you have to be able to teach your students by example. By all accounts, she excelled at that, and that trait is one of the facets of Judge Barrett’s character that likely also makes her an excellent judge.

What we see from the totality of Judge Barrett’s highly qualified record is that America’s employers will get a fair shot.

Judge Barrett, once confirmed and appointed to the Supreme Court, will not rule for our side because it’s the side of business. No judge ever should, and I have no illusions that a Justice Barrett ever would. But she won’t rule against us because we’re the side of business either. And that’s all we want.

About the authors

Steven Lehotsky

Steve Lehotsky is a former executive vice president and chief litigation counsel for the U.S. Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce.