The Business Of The Roberts Court Is Business

No Supreme Court in history it seems has been as beholden to the business community as the Roberts Court.  The NY Times' Adam Liptak takes a look at the relationship between the court and the most influential filer of amicus briefs as of late:  the US Chamber of Commerce.  Indeed, more and more corporate law is ending up before SCOTUS, and that means more and more corporate legal teams are including veteran litigants who have gone before the court before and know how to play the game.  It's a game they are winning.

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.

This relationship, business law through the Supreme Court, has been the core of Roberts Court precedent.  Never before has the corporate community been given such a powerful voice in the judicial.  It's one of the main reasons I actually think the insurance mandate will pass constitutional muster:  the health insurance companies and the Chamber want it.  At the same time, we've already seen the price that the country s paying for decisions like Citizens United.

This court has repeatedly come down in favor of business over people, and it will continue to reshape America in that image for decades to come.