"There is little doubt that the Roberts Court is, broadly speaking, a business-friendly court," DePaul University law professor David L. Franklin writes in a new ACS Issue Brief.
In cases in which the Chamber of Commerce filed a brief over the past five years, the party supported by the Chamber won over 70 percent of the time, a "remarkable" success rate, Franklin writes in Why Does Business (Usually) Win in the Roberts Court?.
This business-friendly skew is attributable to a "skepticism about litigation as a mode of regulation," writes Franklin, examining five types of business regulation cases in which the Chamber often participates.
"Thus, businesses fare especially well when they are defendants; even better when the justices appear to view the litigation in question as having broad regulatory goals as opposed to individualized remedial objectives; and better still when the justices view the litigation as lawyer-driven rather than party-driven," Franklin writes.
During a recent ACS event on corporate influence on the courts, Franklin discussed the Supreme Court's hostility to litigation.
"Really what we're dealing with here are nine lawyers, maybe Ruth Bader Ginsburg is interested in preserving the jury trial, but I don't see too many others on that court right now who are not fundamentally suspicious, skeptical or even hostile to litigation," Franklin said during "Federal Courts, Inc.?"
During the event held at New York University School of Law, Franklin and a panoply of other preeminent experts from a wide variety of specialties discussed factors contributing to the federal court trend toward deciding cases in favor of corporations.
"I think it's true that the conservative movement ... is making a concerted effort, and this effort is being funded on almost an unlimited basis by big business, and that's to reverse every social, economic and political advance that took place in the 20th century and which made America the beacon of liberty and hope in the world," said Daniel Berger, a shareholder with Berger & Montague. "[T]he courts have been highly politicized. Their independence is a joke. And this is one area in which the political process has resulted in the greatest success for the conservative movement."