Despite increasing evidence of a pro-corporate slant in recent Supreme Court decisions, right-wing media continue to insist that there is no such bias.
In a Bloomberg View editorial, National Review Online senior editor Ramesh Ponnuru accused Sen. Elizabeth Warren (D-MA) of “hyperbolic” grandstanding because she accurately cited a comprehensive study that showed that the current Supreme Court of the United States is one of the most pro-business in history. Ponnuru's September 16 editorial called Warren's statements the result of “flawed thinking” :
Citing “a recent study” ... she said: “The five conservative justices currently sitting on the Supreme Court are in the top 10 most pro-corporate justices in a half-century -- and Justices Alito and Roberts are numbers one and two -- the most anti-consumer in this entire time.”
The study doesn't tell us what Warren thinks it does, or anything we should care about. It gives equal weight to every vote by a justice, even though decisions plainly vary in importance for businesses, and for everyone else. It ignores decisions that matter a great deal for businesses but don't have business litigants.
Jonathan Adler, a law professor at Case Western University, notes that the study excludes Massachusetts v. Environmental Protection Agency, one of the two or three most important Supreme Court cases for business of the past decade. The court ruled that the Clean Air Act authorizes the EPA to fight global warming. Because neither named party in the case was a business, the study excludes it.
The study that Ponnuru dismisses, "How Business Fares in the Supreme Court," analyzed nearly 2,000 Supreme Court decisions over the last 65 years. Although Ponnuru doesn't say so, the study was co-written by esteemed--and conservative--federal judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. It has been described, even by its detractors, as “the most comprehensive examination of the Supreme Court's handling of business-related cases in the post-New Deal era.”
For his part, Ponnuru rejects the idea that the quantitative methods used in the study were top of the line, instead asserting that claim is “as convincing a defense as when drunks explain why they're looking under a lamppost for their keys.” According to Ponnuru, evaluating the business slant of the court should take into account “substance and logic” of the court's rulings and “can't be reduced to numbers.”
Conversely, the study's authors, also experts in economics, did rely on numbers.
Using regression analysis, the study ranked each justice who had served on the Court during this time period by how frequently they voted in favor of corporate interests under a multivariate methodology. All five conservative justices currently on the bench were in the top ten--Chief Justice John Roberts was number one and Justice Samuel Alito was number two.
Furthermore, even if the study had included the Massachusetts case, it may not have affected Roberts' ranking. Roberts (joined by Justices Scalia, Thomas, and Alito) dissented in the case, arguing in part that the state had no constitutional right to compel the EPA to enforce automobile emissions standards. In other words, had Roberts had his way, it would have been easier for corporations to avoid regulation.
Ponnuru also took issue with Warren's observation about the significant influence the U.S. Chamber of Commerce has over the conservative justices. As noted in the Bloomberg piece, in her address to the AFL-CIO, Warren rightly points out that "[t]he Chamber of Commerce is now a major player in the Supreme Court, and its win rate has risen to 70 percent of all cases it supports. Follow this pro-corporate trend to its logical conclusion, and sooner or later you'll end up with a Supreme Court that functions as a wholly owned subsidiary of big business."
Ponnuru, however, dismissed the win rate as “an empty number” that tells us nothing about the ideological leanings of the conservative justices. This claim is misleading, but unfortunately not surprising given that the media has largely underreported the friendliness between the Chamber and the current Supreme Court.
In fact, the Chamber is participating in an unprecedented number of cases, making its winning percentage even more alarming. According to the Constitutional Accountability Center:
All told, the Chamber of Commerce has filed a whopping 18 amicus briefs this Term - just below its record number of 21 in October Term 2010. Overall, the Court will likely decide 76 cases this Term, meaning that the Chamber will have participated in roughly 24% of the Court's decided cases.
This in itself is an important story. For instance, during the final five years of the Burger Court - just before the first member of the current conservative bloc (Justice Antonin Scalia) assumed his seat - the Justices were hearing twice as many cases (between 153 and 160 per Term) as they are now. At the same time, the Chamber was filing in an average of seven cases per Term, or approximately 4% of the Court's cases overall. Therefore, even as the Court is now hearing far fewer cases, the Chamber is participating in a greater number of them. Over the past thirty years, the Chamber's participation rate has increased six-fold, from 4% in the early 1980s to 24% today.
It is not in dispute that Roberts and his conservative cohort have handed down decisions that have protected corporations from class action lawsuits, made it more difficult for victims of workplace abuses to seek redress, and have made it easier for businesses to flood elections with campaign donations without having to disclose them.
On the topic of the pro-business prejudice of the Roberts Court, Warren isn't the one tossing around suspect claims.