Another Roberts-led Supreme Court term has ended, and another journalistic “the-Court-is-overwhelmingly-and-blatantly-pro-business” season has begun. Consider the following article titles and segments written in the past two weeks:
“The Supreme Court, which winds up its term Monday, has once again shown itself to be highly skeptical of large lawsuits against big business, regardless of whether the suits are intended to protect workers, consumers or the environment.” David Savage, The Los Angeles Times. June 25, 2011.
“Analysis: Big business scores key Supreme Court term wins.” James Vicini, Reuters. June 28, 2011.
“Corporations and the court: America’s Supreme Court is the most business-friendly for decades.” The Economist. June 23, 2011.
Given such media outcry, it’s no surprise that Senator Patrick Leahy (D-VT) took the opportunity to call for a Judiciary committee hearing ominously named, “Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings Will Affect Corporate Behavior.”
But these articles and this hearing offend logic on two grounds:
1) The notion that the Court is supposed to call cases 50-50 to be considered fair. Consider a baseball umpire. If a pitcher throws 75 strikes in a row and the umpire calls 75 strikes in a row, is the umpire blatantly biased toward strikes? No. The umpire’s job is to call strikes if they are within the strike zone. Similarly, the job of the justices is to frame the law and to rule on how the issue fits (or does not fit) within the law. The framework is not pro-business verse anti-business, but consistent with law verse inconsistent.
2) What numbers are these pro-business complaints coming from? Even if we accept the premise of the journalists and Leahy that the Court’s posture can be judged simply based on number of decisions that favor big business verse number of decisions that hurt big business, the numbers still don’t support the proffered hypothesis. According to Richard Samp, who spoke at a recent Washington Legal Foundation seminar, “Of the 27 decisions, 13 came out the way the business community was hoping, and 13 came out the other way.” Samp even went so far as to say that “the Court was far more friendly to plaintiffs suing businesses when the issue before the court was the merits of the plaintiffs’ claims, rather than whether the plaintiff and his lawyers should be permitted to make use of a procedural device.”
At the same seminar, Peter Keisler of Sidley Austin LLP claimed that the pro/anti-business framework is a “completely inaccurate description of how judges think about their work.” Keisler pointed to Justice Breyer – one not often accused of being pro-business – as somebody who does not think the Court’s attitude toward business has changed over time. And Keisler also called the Chamber of Commerce’s record at the Court – 57 percent victory – as “good, but not overwhelming.”
The Supreme Court already received unmerited insult from the executive branch at the 2010 State of the Union. We don’t now need unfounded criticism from the legislative branch at today’s hearing.