Supreme Court to `get down to business'

By , Staff writer of The Christian Science Monitor

When the United States Supreme Court opens its doors for legal resolutions on Oct. 7, about one-third of its estimated 150 cases will directly affect American business. Industry interests say they don't see any single ``blockbuster'' issue in the coming term -- although the court may well decide after the term begins to docket some cases that could significantly change the direction of labor laws, banking regulations, and antitrust statutes.

For instance, the justices may decide to review a ``comparable worth'' employment statute from the State of Washington which was recently struck down by the Ninth US Circuit Court of Appeals. The case was the nation's first test of the controversial principle that public jobs requiring similar skills, duties, and qualifications be compensated at equal wages, regardless of whether they are performed by men or women.

Many civil rights, labor, and women's groups consider the comparable-worth issue central to attain fair pay for women. But employers point out that the acceptance of this concept could cost public and private businesses billions of dollars in wages and eventually cause grave financial problems for some companies.

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Even if the high tribunal sidesteps, or delays, comparable worth, it is already committed to a host of cases where there is vested business interest. Among the issues the court will wrestle with: the requirement that states strictly enforce federal labor laws; municipal regulation of collective-bargaining agreements; the right of federal agencies to ascertain pollution violations through aerial surveillance of private company plants; and preferential job benefits for pregnant employees.

In recent years, the American business community has viewed the US Supreme Court as something of a supportive friend. But industry spokesmen say the commitment is not yet to the point they would like it to be.

Some business leaders feel a single new appointment to the court by President Reagan could clearly tip the scales in their favor -- bringing more pro-industry rulings in such areas as taxation, trade, environmental regulations, and labor law.

Five members of the court are well past normal retirement age. These include the most liberal justices, Thurgood Marshall and William J. Brennan, who have often voted against business, especially mammoth corporations, in key cases.

There is continued speculation that several justices may retire before the 1988 presidential election -- thus giving a conservative, pro-business Republican President a chance to change the complexion of the court.

In recent business-related cases, however, it has not been the most politically conservative justices, William H. Rehnquist and Sandra Day O'Connor, who have been the most supportive of free enterprise -- but Associate Justice Lewis F. Powell Jr., considered by most to be a moderate and a middle-of-the-roader.

Stephen A. Bokat, director of litigation for the National Chamber Litigation Center -- the legal arm of the US Chamber of Commerce -- explains that Mr. Powell ``understands the pragmatic problems of running a business.''

Justice Powell missed several weeks of the court's deliberations last spring because of illness -- and, until recently, reports of his prospective retirement were rampant. But it now appears that the Nixon appointee will sit on the bench for at least one more term.

Industry officials tend to believe that regardless of its makeup the court is more susceptible to built-in biases on social issues than on business matters. On the latter, the justices ``tend to strictly interpret the statutes,'' explains Quentin Riegel, assistant general counsel of the National Association of Manufacturers (NAM).

Mr. Riegel concedes, though, that in the past two years the Supreme Court has ``weighed in more on the side of business than not.''

One clear test of a changing court will be in coming cases that pit federal authority against states' rights, Riegel says.

Key decisions last year involved local control of transit workers wages and a state's right to tax out-of-state insurance companies at a higher rate than it does intrastate ones. The court narrowly came down for federal principles of fair labor practices and ``equal protection'' over states' rights. But a change of one vote would have shifted both these rulings and perhaps established a new direction against central government regulation of industry -- a high-priority goal of business.

John M. Albertine, president of the American Business Conference, a group composed of industry leaders, says he is less concerned about individual Supreme Court decisions than the current trend of the court toward a ``free market'' philosophy.

``We're into a new federalism,'' Albertine says. And he praises the Supreme Court for a ``general philosophy which has diminished the reach of federal regulatory apparatus into the marketplace.''

Others, however, are a bit more cautious about asserting that the court's stance is now clearly pro-business.

Stephen H. Shapiro, former US deputy solicitor general, talks more in terms of a Supreme Court that attaches prime importance to efficiency in judicial administration and exhibits great deference to state law and policy.

The NAM's Riegel points out that the present court is more open than some of its predecessors to give plaintiffs in labor and employment rights cases ``their day in court.'' But he quickly adds that this tribunal also leans toward accepting reasonable interpretations of statutes by administrative agencies rather than imposing new judicial interpretations.

Riegel allows that administrative agencies tend to reflect the political and social biases of the White House. The Reagan administration is highly in favor of free enterprise and governmental deregulation of business.

But the NAM official notes that the Supreme Court has tended to accept the position of the Justice Department in the vast majority of cases where the solicitor general has presented a brief.

``So if business is on the other side,'' he says, ``it's a bad omen [for us].''

Curtis J. Sitomer writes the Monitor's weekly ``Justice'' column. Environmental and labor law among marketplace issues on '85-86 docket

Here are some of the cases which directly affect business and which the US Supreme Court has already agreed to review during its 1985-86 term.

Dow Chemical Company v. United States. The court must decide whether Dow's Fourth Amendment right to be free from ``unreasonable searches and seizures'' was violated when the Environmental Protection Agency ordered aerial surveillance and photographs of the company's open-air Midland, Mich., plant to probe for air pollution violations. A federal appellate court held that the plant was an ``open field'' and not entitled to constitutional protections of privacy.

Wisconsin Department of Industry v. Gould. This case speaks to the power of states to enforce federal labor laws. Gould seeks to affirm an appellate ruling that Wisconsin cannot institute a law preventing state agencies from signing contracts with companies that have repeatedly violated the National Labor Relations Act.

Golden State Transit Corporation v. City of Los Angeles. This is a challenge of Los Angeles's attempt to regulate labor relations. The city refused to renew Golden State's taxi franchise unless it signed a new collective-bargaining agreement with the Teamsters Union. It is the position of the business community that the city exceeded its regulatory powers in trying to force Golden State to resolve the strike.

United States v. Riverside Bayview Homes. At issue is a federal appeals court decision limiting the kinds of wetlands subject to the Army Corps of Engineers' regulatory jurisdiction under the Clean Water Act. Here business takes on the federal government. It claims that by asserting jurisdiction over land that bears no relation to any navigable waters (over which there is federal jurisdiction), the corps is attempting to convert the Clean Water Act into a national wetlands law.

Miller-Wohl Company v. Montana Commissioner of Labor and Industry. Here is a company challenge of a Montana statute that mandates preferential treatment for pregnant employees. The argument is that federal law requires that pregnancy be treated the same as ``any other disability.'' But Miller Wohl holds that Montana requires maternity leaves regardless of ability to work or employer's existing policies.

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