Big Business's Big TermVictories for the Chamber of Commerce at the Supreme Court.

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Another cause-of-action case in which a decision is still pending is the biggest civil-rights case this term, a suit by a black employee fired by Cracker Barrel. The law at issue here is the historic, if long under-enforced, Civil Rights Act of 1866, which gave freed slaves equal rights in making and enforcing contracts. The question before the court is whether this Reconstruction-era statute bars employers from retaliating against workers who complain of racial bias on the job. At oral argument last week, a number of justices, perhaps a majority, seemed poised to rule that even if the law covered retaliation, the court would not allow a victim of discrimination to go to court and enforce this mandate, even though he or she could sue to enforce other violations of the law. Without the ability to sue, any protection provided by the Civil Rights Act against retaliation becomes essentially useless.

It is extremely hard to reconcile what the court has done in cause-of-action cases like Stoneridge with its approach to pre-emption cases like Rowe, Riegel, and Preston. In the cause-of-action cases, the court says Congress must unmistakably express its intention to allow people to go to court to enforce federal mandates. If Congress isn't crystal-clear, potential plaintiffs are out of luck. But in the pre-emption cases, the court seems untroubled by a lack of clarity on Congress' part, ruling that federal law pushes aside state actions or remedies when it's not at all certain that's what Congress so intended. There's one thing these approaches do have in common: They both favor business interests.

The Chamber of Commerce also appears to have won the day in disputes over the role of the jury in deciding contract and liability disputes that might be costly for businesses. The Preston decision this term caps a long line of rulings, dating from 1984, in which the court has interpreted the Federal Arbitration Act effectively to displace state juries in a vast number of contractual disputes. And in a suit against Exxon argued at the end of February, the court seemed poised to substitute for the jury's view its own idea of the appropriate level of punitive damages for the worst oil spill in U.S. history, as the justices have repeatedly done in punitive damage cases over the past decade.

The court's disdain for jury trials was especially evident at oral argument in Riegel, the case about manufacturer liability for medical devices. Justice Scalia responded to Riegel's argument about the importance of preserving the judgment of the state jury by declaring "extraordinary" the very notion that a "single jury" could find a company liable for a defective product when the "scientists at the FDA have said [the product] is OK." This is a remarkable statement for a justice who professes to be bound by the Constitution's original meaning. Many things are obscure about the framing era, but this we know for certain: The framers of our Constitution loved juries. In siding with the chamber and viewing the jury more as a threat to the modern economy and less as a bulwark of our system of justice, the court is departing sharply from what our framers would have wanted.

There will surely be other cases this term that the Chamber of Commerce loses. The game is not rigged. Rather, by investing heavily in legal strategy and working patiently in case after case, the chamber has won victories that have gradually shifted the ground rules in its favor. For that, the chamber can thank Justice Powell's advice and deep corporate pockets. For ordinary Americans and the victims of corporate misconduct, there is much less to celebrate.

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