The Supreme Court Does Not Work for Big Business

June 29th, 2011 at 11:32 am | 21 Comments |

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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.

Recent Posts by Stephen Richer

21 Comments so far ↓

  • Graychin

    Two words:

    Corporate personhood.

  • tommybones

    My God, this is the ultimate strawman defense. Are you effing kidding me??? Those putting forth the position that the Court is pro-business are not mindlessly calling for some kind of 50/50 formula, they are looking at individual cases, one by one and seeing a blatant pro-business bias.

    Ridiculous waste of a post.

    Oh, it gets better. The headline makes a claim. It emphatically states the court is NOT pro business. Does he provide any evidence of this bold assertion? No.

  • Elvis Elvisberg

    I dunno, I’d have to poke a bit deeper. Jeffrey Toobin wrote a little while back, “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”

    I guess it depends on which cases are “major”? I haven’t followed it closely enough to know, but this blog post raises more questions than it answers.

    Here’s some perspective:

    A year ago, the U.S. Supreme Court’s October 2009 Term featured not only the Court’s blockbuster ruling in Citizens United v. Federal Election Commission, but also a success rate for the U.S. Chamber of Commerce reaching 81% (or 13 wins in 16 cases) (PDF). This focused a national spotlight on the Court’s business rulings under Chief Justice John Roberts. … The Chamber participated in a record 21 cases during the October 2010 Term and won 12 of them, a 57% win rate. The Chamber prevailed in all the cases it viewed as the Term’s most important cases and all but one of the cases splitting the Court along ideological lines. Overall, since January 2006 when Justice Alito joined the Court, the Chamber has prevailed in 65% of its cases before the Roberts Court, a figure that is still significantly higher than the Chamber’s success rate of 56% in our study of the Rehnquist Court (PDF), and dramatically higher than its success rate in our study of the Burger Court, when the Chamber only won 43% of its cases.

  • TerryF98

    This is Effing rich.

    When two of the GOP judges attend Koch Brothers seminars and give speeches to big business forums. When one of the Justices wives is a tea party lobbyist and her income is somehow is missed off his disclosure forms for 20 years.

    Please pull the other leg, this one has bells on it.

    • armstp


      “Koch Brothers seminars” or more likely “Koch Brothers strategy sessions”

  • sgath

    It also just comes down to the doctrinal system in the U.S. where political opinion is based. There’s a pretty small spectrum of opinion on how a society should be governed within the dominant culture, from plain neo-liberal state capitalism of the democrats to the radical state capitalism of the Republicans. What you get is a government, in all sectors, that determines a sense of justice slanted towards state capitalist doctrine. It’s not that the Supreme Court is necessarily just there to serve power, but the philosophy which the court believes in creates that outcome.

  • corwin613

    I think you’re missing a few key points here:

    1. The Supreme Court took it upon itself to rule on Citizens United. That was not the case that was before the Court, but another, much more limited case involving spending and the right to air an ad in the last 60 days of a campaign.

    2. The dissents in the 5-4 cases have been absolutely scathing. For all the world, the 5 cons on the court look like they are twisting the constitution into knots in order to arrive at their decisions.

    3. I’m not familiar with the 27 cases mentioned above, what they are related to, but just as an observation, not all called strikes and balls are equivalent. A called strikeout when you’re up by 8 in the 4th inning is substantially different from a bases loaded walk in the bottom of the ninth that drives in the winning run. Going back to 2, above, it sure looks like there have been several walks issued, and those umpires are looking seriously biased.

    4. We have some very serious ethical considerations with at least 2 justices, Thomas and Scalia, what with Ginnie Thomas lobbying, Thomas receiving money from AEI before ruling on cases, and both attending and speaking at corporate retreats and meetings. That’s just what is public, who knows what is private (and yes that applies to al justices across the political spectrum)?

    To conclude, we need to know that corporations (or any special interest, for that matter) will not get favorable treatment, and given the rulings, that is just not the case. If corporations know that they can get away with anything because they can control not only the political process, but also the judicial process, then the rest of us will suffer as a result.

  • Nanotek

    “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. * * * 2) What numbers are these pro-business complaints coming from?”

    Stephen, you can do better than erecting your straw men to tilt at windmills. Those two claims — 50/50 calls and who’s complaining — are not what the problem is — the problem is the pro-corporate bias of the four activist conservative justices.

    “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.”

    nice try but that’s your “proffered hypothesis,” not theirs. The numbers aren’t random … the SCOTUS takes only the cases they want … so if the numbers display the preferences and the biases in play by what cases are accepted.

    logic? come on … you’re obviously smart … purge your own biases and explore what’s behind the veil … speaking of … when is Justice Thomas going to resign from his scandal?

  • Houndentenor

    If it isn’t then they are wasting a lot of money bribing Clarence Thomas.

  • josebrwn

    What a hasty strawman you’ve constructed … the Roberts court has consistently sided with established power (with the exception of an hallucinatory reading of history asserting ‘regulated militia’ translates to ‘individual right’), just as Senator Obama predicted in 2008:

    “The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”

  • Danny_K

    I saw a comment on the Volokh Conspiracy lawblog recently complaining about how people are “delegitimizing” the Supreme Court. I have to say, the court has become more and more overtly political in the last twenty years and I think the backlash is normal.

    The same thing happened a generation ago with the Burger court in the 1970′s, only with the parties reversed.

    Personally, I think the current status of the Supreme Court is unconstitutional, only there as a historical accident because John Marshall had a really strong personality. We’d all be better off if we made decisions according to the Constitution and not according to an unaccountable group of 9 senior citizens.

  • valkayec

    We’d all be better off if we made decisions according to the Constitution and not according to an unaccountable group of 9 senior citizens.

    The problem with that idea, as we all know, is that the Constitution can be interpreted in many different ways. The language in the Constitution, particularly since writing style and definitions have changed so much in the last 200 years, causes confusion and disagreement. Take the 2nd Amendment for example. Some argue the first clause is primary because back in the 18th C. the first clause of a sentence conveyed the primary thought and anything following was secondary. Based on modern linguistics and sentence construction, others say no, the second clause is primary.

    Thus, if the SCOTUS is not to be the final, unbiased arbiter, who will perform that task? Jefferson said it should be the President. Jefferson believed the SCOTUS should be secondary to, rather equal to, the President. He argued the President should have the final say in what the Constitution means and what laws were Constitutional or not. Is that what you really want?

  • medinnus

    Asserting it doesn’t make it so, whereas the recent court decisions and Judge Thomas’ refusal to recuse himself from his wife’s lobby case indicate that the corruption is quite penetrative.

  • Larz99

    Repeal “Santa Clara County v. Southern Pacific Railroad” and take away corporate personhood and maybe we can talk. Corporations are not people, end of story.

  • hisgirlfriday

    The criticism in Citizens United is absolutely warranted.

    Even if you accept the absurd legal fiction that corporations are people and deserve people rights, the Court has still gravely and radically erred where it has conferred disparate and special benefits on the corporate class of personhood to the detriment of human persons.

    Thanks to Citizens United, corporate persons can expend an unlimited amount of money without having to disclose the source of their funds to elect politicians while us mere human persons are still limited on how much we can spend and required to disclose where we get our income from when we donate to candidates.

  • directeddemocracy

    Really? Using Sidley Austin and the Washington Legal Foundation as evidence the Court isn’t biased toward corporations? One is one of the largest corporate law firms in the world, and the other is described by Wikipedia as:

    The organization promotes pro-business and free-market positions and is widely perceived as conservative. WLF addresses a range of legal matters, including commercial free speech, corporate criminal liability, environmental regulation, food and drug law, health care, and intellectual property.

    It’s like saying if I give out money ten times, five times giving corporations $100 dollars and five giving the little guy $1, they received the same amount. You have to look at which decisions are going which way, e.g. Citizens United, recent Arizona campaign finance decision, and the generic drug decision.

  • tommybones

    My God, I’m so very tired of these right wing zealots. Do people like Stephen Richer know what they are and who they represent? Do they know what damage they inflict on humanity? The human suffering they cause with their full-throated support of established power over the masses? Do you think they know?

  • ConnerMcMaub

    corwin613, what are your allegations against Scalia? Much as I disagree with him most of the time, it is unfair to paint Justice Scalia with the same brush as Thomas. His alleged ethical lapses are greatly different by degree at the very least and I would suggest qualitatively as well. Just because I really disagree with Scalia’s votes and approach doesn’t mean he’s done anything unethical or illegal. He is smart, articulate, and ideologically consistent no matter how wrong I think activist originalism is. If Scalia was such a villain to progressive morality how is it that the Scalia’s closest friend is Justice Ginsberg (as was her late husband). Nothing I’ve heard about Scalia is any worse than Justices Roberts or Alito. Oh yeah, Richer and Kendrick arguments are weak and reflect the fact conservatives haven’t come up with a suitable replacement for the now antiquated “activist” judge charge.

  • ConnerMcMaub

    Danny_K, when you said “I think the current status of the Supreme Court is unconstitutional, only there as a historical accident because John Marshall had a really strong personality. We’d all be better off if we made decisions according to the Constitution and not according to an unaccountable group of 9 senior citizens.”

    Who exactly are the we making the decisions instead of SCOTUS? A national referendum for every supreme court case? Who decides what the founders meant in the constitution and whether that intention is still relevant? What is your alternative to the 9? What about antiquated and contradicting statements like the 2nd amendment. “A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.” What a contortion of a sentence with conflicting internal logic. So doesn’t the fact that we have a professional military mean we don’t need armed civilians. That’s how I read it half the time. SCOTUS decided to ignore the first part of the sentence, which contradicts an originalist argument.

  • Jose Chung

    The Citizens United ruling has just shown how big of a joke it is with Stephen Colbert getting a Super PAC. Only idiots or bought corporate pawns would try to defend the ruling now.

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