Insider sees business tilt on top court

U.S. Solicitor General Paul D. Clement said in Philadelphia yesterday that the Supreme Court under Chief Justice John G. Roberts Jr. had taken a pronounced pro-business approach, and suggested that it could carry over into the next term.

Clement, the government's chief legal advocate before the Supreme Court, said decisions limiting punitive-damage awards against corporate defendants and imposing restrictions on antitrust lawsuits suggested a distinct tilt in favor of business.

"The business docket is a very rich part of the docket and one in which the Roberts court to date has proven very sympathetic to the concerns of corporate defendants," Clement said in an hour-long address about the Supreme Court's recently completed term.

He spoke at the Union League at a luncheon organized by the Philadelphia chapter of the conservative Federalist Society. About 200 lawyers, representing many of the city's largest law firms, attended.

It was widely assumed at the time of his confirmation in September 2005 that Roberts would be sympathetic to corporate defendants, given his background as a corporate litigator, and that his views would help tip the balance on the court.

But Clement said that even apart from Roberts, solid majorities crossing ideological lines had formed in commercial cases - antitrust cases, at least - and that they leaned distinctly toward the interests of corporate defendants.

He cited the May 21 decision in Bell Atlantic vs. Twombly, in which the court sided with the nation's largest local telephone companies against consumers alleging that the firms had secretly agreed not to compete in one another's territories.

The court found, in an opinion written by Justice David H. Souter, who usually sides with its liberal bloc, that the simple lack of competition was not enough proof to let the case go forward.

Clement said that in the last two terms, lopsided majorities had ruled against plaintiffs in seven antitrust cases and had sent a message that lawsuits against corporate defendants would need to clear a high evidentiary hurdle to proceed.

He said the court seemed to be concerned that the costs of discovery in lawsuits had become overly burdensome for corporate defendants, and to hold that they should not be imposed unless it could be shown at the outset that the lawsuit had a chance of success.

At 40, Clement is the youngest U.S. solicitor general in more than 100 years. Like Roberts, Clement had been a member of the Federalist Society before joining government.

Viewed as a potential Supreme Court nominee, Clement typically argues the government's position on a wide range of issues before the Supreme Court. For example, he handled the government's arguments on partial-birth abortion and the U.S. detention facility at Guantanamo Bay, Cuba, among other cases.

He lately has been assigned to oversee the Justice Department's investigation into the firings of eight U.S. attorneys, since he is the highest-ranking official there who was not involved in the dismissals.

It was the fourth consecutive year that Clement addressed a luncheon organized by the Federalist Society in Philadelphia. Event organizer Craig L. Hymowitz, a lawyer with Blank Rome L.L.P., said the event had drawn ever larger numbers of attendees.

"It is a chance to see one of the leading litigators in the nation," Hymowitz said of Clement's address. "There is no faster track for someone at his age in terms of what he has accomplished."

In addition to the antitrust decisions and its findings on punitive damages, the Supreme Court has taken on an unusually heavy load of patent cases, six in the last two years, even as Congress works to revise patent law.

"It is not an exaggeration to say that six cases would have been a decade's work in the Supreme Court a decade ago," Clement said.

He said the thrust of these rulings had been to reduce the number of patents by making them more difficult to get.