Corporate Domination of US Supreme Court

24 February 2011.

A study prepared for The New York Times by academics at Northwestern University and the University of Chicago, has analyzed some 1,450 Supreme Court decisions since 1953.

It showed that, during the five terms in which John Roberts has been Chief Justice,

the percentage of both business cases on the Supreme Court docket and cases won by business interests has grown visibly. 

The Roberts court ruled for business interests 61 percent of the time,

24 February 2011.

A study prepared for The New York Times by academics at Northwestern University and the University of Chicago, has analyzed some 1,450 Supreme Court decisions since 1953.

It showed that, during the five terms in which John Roberts has been Chief Justice,

the percentage of both business cases on the Supreme Court docket and cases won by business interests has grown visibly. 

The Roberts court ruled for business interests 61 percent of the time,

compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005,

and 42 percent by all courts since 1953.

Those differences are statistically significant, the study found.

It was prepared by

• Lee Epstein, a political scientist at Northwestern’s law school;
• William M. Landes, an economist at the University of Chicago; and
• Judge Richard A. Posner, who serves on the federal appeals court in Chicago and teaches law at the University of Chicago.

Posner’s participation is particularly important because he has been perhaps the most influential right-wing academic legal theorist of the last thirty years.

The Roberts court’s engagement with business issues has risen along with the emergence of a breed of lawyers specializing in Supreme Court advocacy,

many of them veterans of the United States solicitor general’s office, which represents the federal government in the court.

These specialists have been extraordinarily successful, both in persuading the court to hear business cases —

which is no small matter, given the relatively few cases the Court agrees to hear of the hundreds that seek their intervention —

and to rule in favor of their clients.

The Supreme Court’s business docket has stayed active in the current term, which began in October. 

A key actor in this movement has been the U.S. Chamber of Commerce.

The Chamber now files briefs in most major business cases.

The side it supported in the last term won 13 of 16 cases.

Six of those were decided with a majority vote of five justices, and five of those decisions favored the Chamber’s side.

One of the them was the infamous and reprehensible Citizens United decision,

in which the Chamber successfully urged the court to guarantee what it called

“free corporate speech” by lifting restrictions on campaign spending.

In a single week last December, the court heard arguments in a case brought by the Chamber

challenging an Arizona law that imposes penalties on companies that hire illegal workers,

and it agreed to hear two cases that could reshape class-action and environmental law.

The Chamber had urged the court to hear both cases.

It said one of them, an enormous sex-discrimination class-action lawsuit against Wal-Mart, posed “grave risks for American business.”

It said the other, a suit by eight states against power companies over carbon dioxide emissions,

“has potentially disastrous implications for the U.S. business community.”

The court’s docket is studded with other important business cases as well,

including ones concerning consumer class-action suits and claims of employment discrimination and securities fraud.

The Chamber has filed supporting briefs in all of them.

In AT&T Mobility v. Concepcion, for instance, the Chamber urged the court to allow companies to use

standard-form contracts that in essence forbid consumers who sign them from pursuing class-action suits.

In Thompson v. North American Stainless, the Chamber asked the court to forbid some employment discrimination claims,

saying that “it costs, on average, over $120,000 just to defend a wrongful-discharge claim.”

In January, the court heard arguments in 11 cases, and the chamber filed briefs in seven of them.

The Chamber of Commerce spent tens of millions of dollars in the recent midterm elections, mostly to help Republican candidates.

It says that it has 300,000 members, businesses and organizations “of every size, sector and region,”

and that its spending furthered the interests of some three million businesses, most of them small ones.

But the Chamber’s mission is by no means limited to the elected branches of government.

“A central function of the Chamber,” it told the Supreme Court in a recent brief,

“is to represent the interests of its members in important matters before the courts.”

The vehicle for that is the Chamber’s litigation unit, the National Chamber Litigation Center,

which says it is “the voice of business in the courts on issues of national concern to the business community.”

Its board includes executives from some of the nation’s biggest companies, including Ford, Verizon, Lockheed Martin, Viacom and GlaxoSmithKline.

On the center’s 30th anniversary in 2007, Carter G. Phillips, who often represents the Chamber

and has argued more Supreme Court cases than any active lawyer in private practice, reflected on its influence.

“I know from personal experience that the Chamber’s support carries significant weight with the justices,” he wrote.

“Except for the solicitor general representing the United States, no single entity has more influence

on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center.”

A study prepared by the Constitutional Accountability Center, a liberal group, examined the center’s success rate in the Supreme Court.

It found that the positions supported by the chamber prevailed 68 percent of the time in the Roberts court,

compared with 56 percent in the last 11 years of the Rehnquist court — a period without changes in the court’s membership.

Robin S. Conrad, executive vice president of the Chamber’s litigation unit, acknowledged her group’s exceptional track record.

“The chamber has earned a reputation for being a credible voice of business,” Ms. Conrad said.

Doug Kendall, president of the Constitutional Accountability Center, drew a different conclusion,

saying the numbers proved that the Roberts court increasingly sided with corporate interests.

He also said the study documented “a sharp ideological divide that did not exist before 2005.”

In the last 11 terms of the Rehnquist court, the five more conservative justices voted for the chamber’s position 61 percent of the time,

while the four more liberal justices voted for it 48 percent of the time.

In the first five terms of the Roberts court, the corresponding bloc of five more conservative justices voted for the chamber’s position 74 percent of the time,

and the four more liberal justices 43 percent of the time.

A prominent Supreme Court advocate who often represents businesses, Maureen E. Mahoney,

chose her words carefully when asked at a Chamber news briefing last September

whether the Roberts court was especially receptive to the kinds of arguments pressed by corporations.

“The best court for getting a fair hearing on those issues,” she said, “is the Supreme Court.”

An additional explanation for the recent successes of business interests in the Supreme Court may lie in

the rise of specialized practice groups at major law firms led by veterans of the solicitor general’s office.

Turning service as United States solicitor general into a career at a commercial firm is a relatively new phenomenon,

according to an article by Matthew L. Sundquist in The Charleston Law Review.

From 1952 to 1981, he wrote, former solicitors general usually became judges, joined law schools or worked as public servants.

In the next 15 years, they split their time between academic and legal work, often consulting with law firms with specialized Supreme Court practices.

Starting in 1996, every former solicitor general, with one exception, has gone on to supervise

a Supreme Court practice at a major corporate law firm, earning as much as $5 million a year.

The exception is Justice Elena Kagan, who joined the court last August.

These specialists make their livings representing business interests,

and they have used the skills they honed in government service to achieve notable successes in the Supreme Court.

They had a particularly good run, for instance, in environmental cases in the term that ended in 2009.

“For the first time, a series of industry clients turned repeatedly to the expert Supreme Court bar

for assistance in a host of cases arising under federal pollution control laws,”

Richard J. Lazarus, a law professor at Georgetown, wrote in The Yale Law Journal Online in February 2010.

“The result was palpable and formed the basis of the best term that industry has ever enjoyed before the court in environmental cases.”

Among these lawyers were some of the most prominent members of the specialized Supreme Court bar.

Though the odds of obtaining Supreme Court review are about one in 100,

these lawyers persuaded the court to hear four cases that “would not have seemed to have a remote chance of review,” Professor Lazarus wrote.

They won every time.

In one of the cases, Theodore B. Olson, who had served as solicitor general in the administration of President George W. Bush,

persuaded the court not only to hear the case,

but also to rule for his client, making it easier to dump mining waste into an Alaskan lake.

In another big environmental case, Miguel A. Estrada, also a veteran of the solicitor general’s office, persuaded the Supreme Court not to hear a case,

though the lower courts were split on the question it presented and the federal government had implored the justices to resolve it.

Mr. Estrada’s client, McWane Inc., a pipe manufacturer in Alabama, had been convicted of discharging untreated industrial pollutants into a creek.

An appeals court threw out the conviction and a $5 million fine, saying the creek was not covered by the Clean Water Act.

Mr. Estrada’s skill in persuading the court to let that decision stand was the term’s coup de grâce, Professor Lazarus wrote.

These corporate victories in the environmental arena have also been visible in Roberts’ court rulings in other areas of the law.

David L. Franklin, a law professor at DePaul University, wrote in The Santa Clara Law Review that

the Chamber had been quite successful in the Roberts court in four of what he considered five main categories of cases —

• punitive damages,
• arbitration of consumer and other disputes,
• the standards for early dismissal of lawsuits, and
• federal pre-emption of state laws governing injury and other suits.

The “conspicuous exception,” he said, was employment discrimination.

Even in employment discrimination cases, however, the available numbers are subject to two interpretations.

True, the Roberts court’s 16 decisions have been evenly divided, according to an analysis by Professor Epstein at Northwestern.

But the Rehnquist court ruled in favor of people claiming discrimination more often — 64 percent of the time.

It is also clear that the Supreme Court these days is increasingly focused on business issues.

“The fraction of business cases on the docket has grown from 21 percent in the last five years of the Rehnquist court

to 27 percent during the Roberts years,” Professor Epstein said.

“This isn’t a small jump.”

Ms. Conrad, of the Chamber’s Litigation Unit, said part of her group’s role was

to keep its agenda before a court that is deciding about half as many cases as it did in the 1980s.

One way to do that, she said, is by filing briefs urging the court to hear particular cases, an effort that is ordinarily a 1-in-100 long shot.

But the Chamber has succeeded about 30 percent of the time in persuading the Roberts court to take its cases, Ms. Conrad said.

To make that perfectly clear, while the pure mathematical odds of getting a case before the Supreme Court is about 100 to 1,

somehow, during the Roberts era, the Chamber of Commerce has managed to get a hearing approximately 30 times greater than the statistical average.

“There has been a return on investment, not to sound too crass,” Conrad told the New York Times.

Indeed.

 

David Caploe PhD

Chief Political Economist

EconomyWatch.com