Emboldened by the political climate surrounding the election of President Trump in 2024, the 68th Idaho legislature passed a resolution calling on the United States Supreme Court to reexamine the seminal case Obergefell v. Hodges and declare that marriage equality runs afoul of the United States Constitution. What if, in this instance, Albertsons—a national grocery retailer and the fourth-largest private for-profit company in Idaho, as well as an active supporter of LGBTQ+ causes—responded by closing all stores in Idaho? What if Alaska Airlines—a steadfast ally to the LGBTQ+ community and the airline with the most routes in and out of Idaho’s largest airport—reacted by discontinuing flights to and from the state?
One may assume big business wouldn’t put their interests on the line in such a way, but businesses have done so before. For example, when North Carolina passed a “bathroom bill” targeting the transgender population, the National Basketball Association (NBA), which operates as a major business actor in the sports and entertainment industry, led the way by cancelling its award of the NBA All-Star Game to Charlotte. Lawmakers responded by passing a subsequent bill that aimed to soften the state’s stance.
Such advocacy extends beyond the state level, with advocates bringing their causes all the way to the nation’s highest court. The Supreme Court of the United States has long been a battleground for social change, with attorneys and activists using high-stakes litigation to advance their agendas. While the role of individual litigants and advocacy groups in shaping social policy through the Supreme Court is well-documented, the influence of another powerful player—big business—has received less attention.
Businesses have a long history of appearing before the Supreme Court, dating back to the early days of antitrust litigation over a century ago. In recent decades, they have become increasingly active before the Court, including by filing amicus briefs on cases of social importance. This trend reflects the growing role of business in shaping social and political discourse, as companies seek to influence public policy on issues ranging from immigration to abortion to LGBTQ+ rights.
This Article examines the growing impact of business-backed amicus briefs on Supreme Court decision-making and analyzes the implications of businesses’ unique position to advance social change through the court system. Part I begins by reviewing the rise of business-led social activism, including examples of how companies engage through public statements, private actions, legislative advocacy, and judicial intervention. Part II then examines amicus briefs before the Supreme Court, tracing their historical development, the theoretical foundations for their submission, and their impact on persuading the justices. Part III analyzes the intersection of business-led social activism and the practice of submitting amicus briefs to the Supreme Court. It examines several of the most impactful social cases from the last twelve terms that involved amicus briefs submitted by business groups, analyzing their influence on both majority and dissenting opinions to evaluate the briefs’ effectiveness. Finally, Part III concludes by considering the future of corporate involvement in Supreme Court litigation, including the potential impact of business-led amicus briefs given the Court’s current business-friendly and conservative composition.