Courting Business Interests

May 6, 2013

by John Schachter

Lest anyone still doubt corporate influence (or is it control?) over the nation’s high court, Adam Liptak’s nearly 3,000-word article in yesterday’s New York Times should resolve any uncertainties. The Court’s business rulings, Liptak notes, “have been, a new study finds, far friendlier to business than those of any court since at least World War II. In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes.”

The latest report, published in April in The Minnesota Law Review, looks far beyond cursory glances and anecdotal examples, studying 2,000 court decisions over a 65-year-period ending in 2011. “The study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10,” Liptak notes. “But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.”

Before right-wing skeptics criticize the latest report as biased propaganda, we should note that the authors who prepared the report – Lee Epstein, a USC professor of law and political science; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago – are no one’s idea of a leftist cabal.

This study, meanwhile, comes on the heels of a new report by the Constitutional Accountability Center (CAC) that found that the Supreme Court continues to hear more cases involving business interests and “that the Chamber [of Commerce] continues to win the vast majority of its cases pending before the Roberts Court.” ACS’s own Jeremy Leaming took a look at this report and the broader issue just four days ago in a post for ACSblog. 

Both of these analyses pinpoint the disturbing trend and reality of the past decade, and which ACS has been shining the spotlight on for years. In February 2011, ACS hosted a national event, “Federal Courts, Inc.,” at NYU Law School bringing together nearly three dozen leading thinkers and practitioners with varied areas of legal expertise for a special roundtable conversation on corporate influence and the courts. Former New York Governor Eliot Spitzer delivered the keynoter address, and NYU Law Professor Arthur Miller led the engaging conversation among the wide variety of legal experts.

ACS Issue Briefs by Alan Morrison, Lerner Family Associate Dean for Public Interest & Public Service at George Washington University School of Law, and David Franklin, Associate Professor of Law at DePaul University College of Law, in 2011 tackled this very topic. Morrison’s “Saved by the Supreme Court: Rescuing Corporate America” (Oct. 4, 2011) takes stock of the high court trend over the past 10 years of siding in almost every high-stakes case with big business. Morrison concludes, “The Court proceeds boldly when caution seems the wiser course, and it is apparently quite unconcerned with the victims of corporate abuse or with allowing alleged wrongdoing to go unremedied.”

Franklin’s “Why Does Business (Usually) Win in the Roberts Court?” (Feb. 17, 2011) looks at the success rate of the U.S. Chamber of Commerce in the Roberts Court and concludes that the court’s decisions in business cases are characterized not so much by a bias in favor of business per se, but by a skepticism about litigation as a mode of regulation. In a guest post for ACSblog at the time, Franklin concluded that “most of the justices share the same dim view of litigation that the Chamber repeatedly propounds in its briefs.”

Looking at all the evidence, it really does seem unfair to say the Roberts Court has deemed that corporations are people. In reality, this court treats corporations better than people.