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Monday, December 20, 2010

New York Times Reports on the Corporate Court

The New York Times this weekend reported on the Roberts Court’s corporate favoritism, noting that the Chamber of Commerce enjoys significantly disproportionate influence in business cases before the Court. The article details the concerted effort that the conservative big business group has undertaken over the past 40 years to gain influence before the Court – an idea initially propounded by Justice Lewis Powell. Robin Conrad, executive vice-president of the Chamber, touted the Court’s pro-corporate bias noting that “[t]here has been a return on investment, not to sound too crass.”

The article reported on a new study of how business interests fare before the Court, conducted by law professors Lee Epstein and William Landes, as well as the conservative Seventh Circuit Judge, Richard Posner. The study found a significant increase in the percentage of business cases the Supreme Court has agreed to hear under John Roberts’ leadership, as has the number of cases in which pro-corporate forces have prevailed.

An excerpt from the article is below, and the full version is available here.

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 Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending.

The chamber’s success rate is but one indication of the Roberts court’s leanings on business issues. A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests.

The Roberts court, which has completed five terms, 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.

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 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. In a single week this month, 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.”

Next month, the court will hear arguments in 11 cases. The chamber says it will file briefs in seven of them.

Go to thecorporatecourt.com to learn more about this issue.

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