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Supreme Court likely to have a strong business vote for decades

Erin Fuchs
Deputy Managing Editor

The retirement of the U.S. Supreme Court’s swing voter, Anthony Kennedy, ensures that his seat will be occupied by another justice who sides with corporate rights.

The departure of Kennedy, 81, after more than three decades on the high court, gives President Donald Trump an opportunity to shape the Supreme Court for decades to come — particularly since he already put one nominee, Neil Gorsuch, on the bench.

“Trump’s judicial appointments tend to side with business and against regulation,” said Adam Winkler, a UCLA Law professor and author of “We the Corporations: How American Businesses Won Their Civil Rights.”

Winkler added, in an email message to Yahoo Finance: “This term, Justice Gorsuch voted with the Chamber of Commerce in 9 of its 10 cases. We can expect more of the same from Kennedy’s replacement.”

‘Very solid on a lot of business issues’

Justice Kennedy is known as a swing voter who has sided with liberals on many social issues, like same-sex marriage, while casting votes with conservatives on cases involving businesses.

“Kennedy was obviously very solid on a lot of business issues. He was a pretty consistent vote,” Carter Phillips, a partner at Sidley Austin, told Yahoo Finance. Phillips, who who has argued 76 cases before the Supreme Court, noted that Kennedy is a particularly strong proponent of corporations’ First Amendment rights.

In 2010, Kennedy notably wrote the majority opinion in Citizens United v. Federal Election Commission, which ruled that the federal government could not ban corporations from spending money on elections. “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech,” Kennedy wrote.

More recently, Kennedy invoked the First Amendment in a decision that narrowly sided with a Colorado baker who refused to bake a cake for a same-sex wedding. Phillips noted that Kennedy was able to give businesses new weapons to fight regulation.

Of course, not everybody agrees with the notion that the First Amendment should apply to corporations, and Phillips noted that the First Amendment has “become expansive.”

In addition to his rulings to protect corporate speech, Kennedy was also known for his votes to curb Congress’s regulatory power. For example, in a 2009 case, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, Kennedy wrote a majority opinion that allowed an Alaskan mining company to dump waste in a lake — ruling against environmental groups that claimed a permit allowing the discharges violated the Clean Water Act.

“While Kennedy was not the swing vote in business cases as much as in the cases on hot-button social issues,” Winkler noted, “he was a consistent vote for corporate interests.”

‘They’ll shrink into a huddle’

While Kennedy’s retirement might be good for businesses in the long run, in the short term they will lack a reliable pro-corporate vote on the high court. Until Trump gets a nominee confirmed, the court, which will go on break this summer and resumes session in October, will be operating with only eight justices split along ideological lines. When Justice Antonin Scalia died in 2016, the court filled its docket with staid cases that the justices were likely to agree on.

If the court were to take on a case and end up with a 4-4 vote, then the lower court’s ruling stands. So, for example, consider that the court has only eight justices when it hears Apple’s appeal fighting a lawsuit brought by consumers who claimed the tech giant has an illicit monopoly on the sale of iPhone apps.

The Supreme Court has already agreed to hear that case — and if it splits its decision, then a lower court ruling allowing a case to proceed against Apple would stand.

However, the nation’s highest court may likely stick to cases where a majority of justices will be able to agree. “I think the court will do what it did when Scalia passed away. They’ll shrink into a huddle, you’ll see a lot more intellectual property cases,” Phillips said, suggesting the justices won’t hear any hot-button issues while there’s still a vacancy.

So, while American businesses might be gaining an ally for the long haul, they’re losing some support in the high court for now.

Erin Fuchs is deputy managing editor at Yahoo Finance.

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