Everyone says the Supreme Court nominee is "pro-business." But what does that mean? In most areas of business law, his record is far more complex than the phrase suggests.

(FORTUNE Magazine) – JUST HOURS after President Bush nominated Samuel A. Alito Jr. to the U.S. Supreme Court, the predictable rush to judgment began. Pro-life leaders called Alito a fast train to a world without Roe v. Wade. Liberals called him an opponent of fundamental rights and protections. And as for business, the verdict was unanimous. "Business wins," said Ted Frank, a fellow at the American Enterprise Institute. A magazine headline read, WHY BIG BUSINESS LIKES ALITO. And the New York Times averred that Alito had "reliably favored big-business litigants." Labels stick--Sam Alito is "pro-business."

This tells us something about journalism (it's hungry for predigested opinion) and about advocacy groups (they view judicial nominations as fundraising opportunities). It just doesn't tell us much about Alito. The 55-year-old judge, as it happens, is not an easy man to pigeonhole. He has written more than 240 decisions in his 15 years on the U.S. Court of Appeals, thereby ensuring that by cherry-picking cases and sliding over nuances, anyone can prove just about anything about him. Still, some themes do emerge from his record, on and off the bench, that suggest what kind of justice he might be. He is brainy, decent, modest and shy, awkward and even a bit nerdy, conservative in both his temperament and his politics. He has worked all his life for one employer--the federal government--and, colleagues say, he has faith in institutions. He respects judicial precedent, as appeals court judges should. Above all, he reveres the law and its traditions. Robert Mintz, a white-collar criminal defense attorney who worked for then--New Jersey D.A. Alito as a federal prosecutor in the late 1980s, puts it this way: "Many people during the Reagan era saw the Department of Justice as a vehicle for change. Sam was not one of them. He is wedded to the law, not to a grand political philosophy."

To ask whether Alito is pro-business is to pose the wrong question. Why? Consider some of the cases on the Supreme Court's docket this term. Three antitrust actions, including a price-fixing case brought by 23,000 gas station owners against a joint venture of Shell and Texaco, pit businesses against businesses.

Many cases decided by Alito fall into that category as well. Last month he wrote that an insurance company, Royal Indemnity, had an obligation to pay two banks, Wells Fargo and Wilmington Trust, whose portfolios of student loans it had insured--despite the fact that the company that had actually made the loans had committed a "spectacular fraud." Although Royal's policy gave the banks the express right to collect even in a case of fraud, the insurer argued that paying the claim would sanction massive wrongdoing. No matter, said Alito, a contract means what it says.

Not all judges interpret contracts as strictly as Alito does. "It was a close case, and another judge might have found a way to void the contract," says Larry E. Ribstein, a University of Illinois law professor who specializes in business law. Alito, for example, has upheld arbitration clauses and "choice of law" provisions in contracts that make it harder for injured parties to sue. In another insurance case Alito upheld a lower court that ordered an insurer to pay the medical bills of a child who was diagnosed with leukemia just five days after her health insurance policy took effect, even though she had been treated for its symptoms earlier. Citing two dictionary definitions of the word "for," Alito wrote that "the treatment she received was not 'for' leukemia, but 'for' a respiratory tract infection." His decision cost the company nearly $1 million but struck a blow for the predictability of contracts. "Is that pro-business or antibusiness?" asks Ribstein. "It's neither."

Alito has supported corporations consistently in some arenas, notably employment and discrimination law. In Sheridan v. E.I. du Pont (1996), Alito was the lone dissenter when a panel of judges decided by a 10-1 vote that a woman who was fired from her job at the Hotel DuPont in Wilmington, Del., did not have to show direct evidence of sex discrimination to win her claim. Alito's dissent relied on fine points of law, as his writings often do. But it is part of a pattern of dissents from majority rulings that went against employers. When he dissented in a case in which a black housekeeper at a Marriott hotel was passed over for a job that went to a white woman, the judge writing for the majority said that Alito's reading of Title VII of the 1964 Civil Rights Act was so constricted that the statute "would be eviscerated" if other courts agreed with him.

Cass Sunstein, a professor at the University of Chicago Law School, says nearly all of Alito's dissents, in business and criminal cases, put him to the right of the other judges in the Third Circuit, which is more liberal than most appeals courts. "What bothers me is not a particular vote. It's the collection," Sunstein says. "The predictability is really astounding."

But in other arenas where the stakes are high for business, Alito is not nearly as predictable. His record on the environment, while thin, shows he voted to make it harder for citizens to get into court to sue polluters--but he also supported clean-air rules and coal-mining regulations that were opposed by business. In a shareholder class action suit brought against Burlington Coat Factory after its stock price plummeted, Alito's opinion came down on the side of the company, but in a nuanced way. "It suggests that he's not particularly hostile to securities plaintiffs and many judges are," says David Hoffman, who teaches corporate law at Temple University.

Alito has staked out an unambiguously conservative position on one big issue: how to apply Article I, Section 8, of the Constitution, known as the Commerce Clause, which gives Congress the power to regulate "commerce among the several states." Supreme Court commentators have debated its meaning since the 1930s, when the justices struck down several New Deal initiatives, saying they exceeded Congress's constitutional authority; the court later adopted a more liberal reading of the clause, which became the basis, for example, of most federal environmental laws.

The Rehnquist court pulled back to a narrower interpretation of the clause in the mid-1990s, and the addition of Chief Justice John Roberts and Alito could bring further retrenchment. In a 1996 dissent, Alito argued that a federal firearms law that prohibited the possession of machine guns did not pass muster because ownership of a gun did not constitute interstate commerce. Judicial conservatives, who wanted to limit government's powers, applauded. If Alito's view prevails, laws such as the Endangered Species Act and the Clean Water Act might not hold sway. The Supreme Court agreed last month to hear two Clean Water Act challenges brought by two sets of Michigan property owners (one built a shopping center on wetlands; the other wants to develop condos). Federal regulators sued the first group of landowners and are blocking the second, but the owners say their wetlands aren't connected to any "navigable waters of the U.S." Environmentalists say the case is their most important before the Supreme Court in years.

You might think that business would cheer when judicial conservatives support property rights over environmental regs. But big companies, at least, often prefer federal to state regulation. In fact, groups like the U.S. Chamber of Commerce and the National Association of Manufacturers argue that federal power should preempt states like California from regulating everything from the fuel efficiency of cars to the sending and receiving of faxes, even those that cross state lines. "The last thing manufacturers want is a Balkanized market where you have inconsistent or conflicting regulations," says NAM's Hank Cox.

That is by no means the only place where the business establishment and judicial conservatives part company. On the issue of punitive damages, a top concern of business, there is disagreement as well. Here, Alito's record is skimpy. In 1995 he wrote a majority opinion that struck down a $3 million punitive-damage award to a distributor of Amana refrigerators because the jury had found that no actual damages had occurred. That was, however, a relatively easy call; all three appellate judges agreed. Since then, the Supreme Court has twice struck down punitive-damage awards made by state courts, reasoning that the constitutional right to due process of law gives them the power to set limits on jury verdicts. But both cases drew strong dissents from odd bedfellows. Two conservative justices, Antonin Scalia and Clarence Thomas, and Justice Ruth Bader Ginsburg, a Clinton appointee, argued that the Constitution does not permit federal judges to limit punitive damages. Corporate lawyers would be dismayed, to say the least, if Roberts and Alito shared their view. "There are [a] series of issues where a principled commitment to a conservative judicial philosophy does not lead to a pro-business outcome," says Donald B. Verilli Jr., a partner at Jenner & Block who has argued numerous cases before the Supreme Court.

Alito's confirmation seems likely; his impeccable credentials and self-effacing personality have impressed Senators, and moderate Democrats seem reluctant to launch an all-out ideological attack on him. If he ascends to the bench, his impact will depend on what kind of conservative he turns out to be. As a judicial conservative, in the mold of Scalia and Thomas, he may be inclined to strictly construct the meaning of the Constitution and use the court's power to strike at the heart of regulatory government. As a man who reveres the law and its tradition, though, he may be inclined to use his judicial power "with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system," as he said the morning he was nominated. Of course, there's a danger in trying to extrapolate any judge's future from his past. When Abraham Lincoln appointed Salmon P. Chase the Chief Justice in 1864, he said that he wanted a judge who would uphold the legality of "greenbacks," money not backed by silver or gold, that had enabled the North to finance the war. As Lincoln's Treasury Secretary, Chase had written the laws. Three years later Chase wrote an opinion holding that the greenbacks were unconstitutional.


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