Think twice before calling the Supreme Court “pro-business”

A recent study deserves a second look

Is the current Supreme Court “pro-business?” That assertion has been made with increasing frequency, most recently in a New York Times article headlined “Corporations Find a Friend in the Supreme Court.”

The charge hearkens back to the time when the Warren Court was called “pro-defendant” because it frequently ruled in favor of criminal defendants in cases involving claims under the Fourth, Fifth and Sixth Amendments and “anti-religion” because of its interpretations of the First Amendment’s religion clauses. Then, as now, those unhappy with the court’s rulings depicted the court as an unprincipled, result-oriented institution—using the court as a foil to increase support for the critics’ political goals.

But these charges can have long-term consequences—especially in today’s supercharged partisan climate—making the court appear to be just another political institution, and an unelected one at that. Without the credibility that comes from its perceived independence from the political battlefield, overall respect for the court will erode, with potentially dramatic ramifications given the court’s involvement in so many controversial issues. What would happen if a future President or Congress says, “the Supreme Court’s decision is just political, not based on the law, and I won’t abide by it?”

Critics therefore should be judicious in how they frame critiques of the court. And the “pro-business” charge is an unfortunate example of a political attack without substantive support.

The recent New York Times article purports to provide empirical support for such a charge. But a closer look reveals that the support is lacking.

The article relies on a just-released study of the justices’ voting pattern in business cases—which finds that the Roberts Court has ruled in favor of a business party more frequently than prior courts. The authors of that study, however, are careful to limit their conclusions to quantitative assessments based on their data. For example, the study concludes that “the Court is taking more cases in which the business litigant lost in the lower court and reversing more of these” and that “the Roberts Court also has affirmed more cases in which business is the respondent than its predecessor Courts did.” In particular, the study does not draw any conclusions about the jurisprudential impact of the cases decided by the Roberts Court—either alone or in comparison to the cumulative impact of business-related rulings by past courts.

Thus, the study, while descriptive to some extent, can easily be misunderstood or taken out of context. As Jonathan Adler explained in a Volokh Conspiracy blog post, the study’s methodology “treats all votes in favor of the business litigant equally, no matter what was at stake”; thus if the pre-Roberts Court voted 6-3 to recognize an implied right of action, but the Roberts Court “then votes 6-3 to reject further expansion of the case of action” the methodology “will find that the court has become more ‘pro-business,’ even though the law remains less business friendly than it had been prior to the first decision.”

Moreover, the study treats all votes in favor of a business party equally. A unanimous decision in favor of the business party in a case involving a trivial legal issue weighs the same as a decision against the business party that will have broad significance. And it omits completely decisions involving states or non-business parties that address issues of great significance to business litigants, such as the ruling in Massachusetts v. EPA holding that the Environmental Protection Agency has authority to regulate greenhouse gases—which led to the promulgation of an entire regulatory regime by the Obama Administration EPA.

While a useful and interesting quantitative analysis, the new study thus says little or nothing about the overall jurisprudential effect of the court’s decisions.

Nonetheless, the New York Times article moves from a discussion of the study to the assertion by Professor Arthur Miller that the court’s “general track record” has been “decidedly pro-business,” with the supposed result that “businesses are free to run their operations without fear of liability for the harm they cause to consumers, employees and people injured by their products.”

Professor Miller is one of our most distinguished legal scholars, but he also is someone who typically takes a decidedly pro-plaintiff view of the law. Not only is his view unsupported by the new study, it is also is not supported by the cases he cites.

To take just one example, Professor Miller attacks the court’s decision in AT&T Mobility v. Concepcion for upholding an arbitration clause barring class procedures. But does a legal system that favors class actions over every other consideration necessarily benefit injured employees and consumers? Certainly the lawyers—those representing plaintiffs and those representing defendants—do very well when class actions are plentiful. But do actual injured parties?

After all, most injuries are individualized and cannot be remedied in class actions—and the lion’s share of them are too small to attract the services of a lawyer. Isn’t it better for those consumers and employees to have recourse to the accessible, efficient dispute resolution that arbitration provides rather than relegating them to proceed on their own in our overcrowded courts? As the Supreme Court put it—in an opinion written by Justice Breyer—for those individuals the choice is between arbitration and nothing: Without arbitration, “the typical consumer who has only a small damage claim (who seeks, say, the value of only a defective refrigerator or television set)” would be left “without any remedy but a court remedy, the costs and delays of which could eat up the value of an eventual small recovery.” (Allied Bruce Terminix Cos. v. Dombson)

And individual customers who possess even the minority of claims that can be asserted in class actions will often do better in arbitration. That was the conclusion of both of the lower courts in the Concepcion case—the district court specifically found that the plaintiffs would likely be better off in arbitration than in a class action. It is true that the basis for that conclusion was the specific provisions of AT&T’s arbitration clause—but a similar approach is being adopted by a number of companies around the country.

The “pro-business” charge is easy to make, but it’s hard to back up. Wouldn’t it be better to focus more on the substance of what the court is doing and less on trying to score political points?

Contributing Author

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Andrew Pincus

Andrew Pincus is a partner in Mayer Brown’s Supreme Court and Appellate practice. He focuses his practice on briefing and arguing cases in the Supreme...

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