Guest Commentary

John Kendrick, Summer Fellow, Washington Legal Foundation*

Today, the U.S. Senate Judiciary Committee is holding a hearing titled, “Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings Will Affect Corporate Behavior.” The hearing seems designed to advance the notion that the Supreme Court is biased toward free enterprise. When making this accusation, critics point to specific, high-profile decisions that have been decided favorably toward the business side of the issue, such as Citizens United, or more recently, Wal-Mart v. Dukes. 

Many in the media have regretfully bought into this theory, and have utilized raw numbers to make their point. For instance, The Economist noted that by their count the Chamber of Commerce won in about 56% of the cases it got involved in from 1994-2005, but under the Roberts Court from 2006-2010, its success rate was 68%. A recent study by several academics also claimed to find a similar trend; the Roberts court has ruled in a “pro-business fashion” 61% of the time, compared to 51% under Rehnquist, 47% under Burger, and 29% under Warren. Citing these trends, critics accuse the court of being reflexively pro-business. They are wrong.

Before disproving this argument on its own terms, it is important to realize that the metric by which the critics judge the court is unreasonable. The idea that the Court can be described as “pro-business” or “anti-business” based on the number cases won and lost is preposterous. There is absolutely no reason to assume that in a “fair” world, the Court would rule in favor of business exactly half the time. Instead, the court evaluates each case based on the law and the strength of the competing arguments.

At Washington Legal Foundation’s media briefing on the Court term yesterday, former Assistant Attorney General and Acting Attorney General Peter Keisler made just this point, saying that assessing a case based on the identity of the litigant was a “completely inaccurate description of how judges think about their work.”

But even accepting, arguendo, that raw numbers can reflect the Court’s pro- or anti-business leanings, the evidence is mixed at best.  As noted by WLF’s Chief Counsel Rich Samp at yesterday’s WLF briefing, in the most recent Supreme Court term, there were 27 cases in which the business community had an interest. Of these, the business litigant achieved 13 “victories” and 13 “losses” (with one “tie”). 

Looking behind the numbers further refutes accusations of business predisposition. Of the cases decided in favor of the business community, most concern procedural rules. (The recent Wal-Mart ruling is a perfect example of this).  As Keisler noted, when the issue before the court is the merits of a plaintiff’s actual claim against a business (rather than whether the plaintiff was abusing procedural rules), the justices are far more receptive to the plaintiff’s arguments – the procedural ruling in Wal-Mart was the only discrimination case that business interests won last term.

No doubt, politicians such as those pounding their gavels (and shoes) at today’s Judiciary Committee hearing will be unmoved by explanations that go beyond the numbers, for they are seeking to make political, not legal or logical, points. And as a group that advances the cause of free enterprise, WLF is not troubled if its perspective on the law is embraced by the nation’s highest court. But we find claims of institutional bias among the justices as unfounded and deeply troubling to the notion of judges as neutral arbiters.

Click here to watch WLF’s entire wrap-up on the Supreme Court term, featuring Samp and Keisler, as well as Dick Thornburgh (K&L Gates) and Patty Millett (Akin Gump).

*John will be entering his senior year this fall at William & Mary.

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