Is the Supreme Court Pro-Business?
[Slate has started a new law blog called Convictions. Part of my first post is reproduced below.]
Jeffrey Rosen argued that it is, in a Sunday NYT magazine article, but he supplies little evidence:
"Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting voices."
-- But how many of them were decided in favor of businesses? Weirdly, we're not told. What if businesses won only half the time? Or less? Even if businesses won more often than other parties, we wouldn't be able to establish bias without knowing whether their cases were strong or weak.
"Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years."
-- Another meaningless statistic. Suppose that the additional cases involve disputes between businesses and workers and that the workers always win. We can't tell whether bias exists unless we know whether the Court rules in favor or against those business interests. (For one case where the employee wins, go here.)
"While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms - and all of them were decided in favor of the corporate defendants."
-- These seven cases--Volvo Trucks North America, Inc. v. Reeder-Simco, GMC, Inc. (2006); Texaco, Inc. v. Dagher (2006); Illinois Tool Works v. Independent Ink, Inc. (2006); Weyerhaeuser v. Ross-Simmons Hardwood Lumber Co., Inc. (2007); Bell Atlantic Corp. v. Twombly (2007); Leegin Creative Leather Products, Inc. v. PSKS, Inc. (2007); Credit Suisse First Boston Ltd. v. Billing (2007)--are mostly business versus business cases. Only one case--Twombly--pitted consumers against businesses. Credit Suisse ambiguously pitted investors (including corporate investors) against a business. So in five or six of the seven cases in which a corporate defendant won, a corporate plaintiff lost.
"Exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce's petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog."
-- Those 10,000 petitions include lots of hopeless cases. The Chamber of Commerce will obviously pick and choose on the basis of the quality of the case, and put resources only behind those cases that have a chance of prevailing. Hence its high win rate.
"And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent."
-- The overall success rate of petitions does not tell us the success rate of the Chamber of Commerce. The pertinent statistic is that last term the Chamber of Commerce won 13 of 15 cases for which it wrote an amicus brief. But, again, without knowing whether these cases were strong or weak, we have no way of telling whether this win record reflects bias or simply the Chamber's ability to sniff out cases where lower courts erred.
-- I looked at the 23 cases listed on the Court's website for this term. I counted nine business cases: of these, businesses lost in 5 cases, more than half. But this doesn't tell us anything either. If the court has become more pro-business, most parties will settle in line with the changing jurisprudence, and there is no particular reason to think that win/loss data will tell us anything (the "selection effect" problem that dogs empirical research).
Aside from these ambiguous statistics, Rosen cites four decided cases to support his argument. These four cases are less straightforward than they appear at first sight. To see why, consider the question, what does it mean to be pro-business?