Elizabeth Warren Is Right

If you haven’t watched Senator Elizabeth Warren’s recent address to the AFL-CIO Convention, you should.  Senator Warren occupies the Senate seat once held by Ted Kennedy, and she is quickly proving herself to be a worthy successor, speaking powerfully to the concerns of economic justice that dominated Senator Kennedy’s work during his last two decades in the Senate.  Few politicians on the national stage right now are as effective as Senator Warren in channeling the anger of hard-working Americans as the rich get richer and the working class gets left behind.

It’s no surprise then that Warren’s speech has drawn fire from the right, particularly her pointed criticism of the “increasing corporate capture of the federal courts.”  What is surprising is the weakness of the conservative response, which, in turn, demonstrates the air-tight case Warren has made about the pro-corporate trend at the Supreme Court since Chief Justice John Roberts and Justice Samuel Alito joined the bench.

Here’s the key passage of Warren’s speech:

According to a recent study, the five conservative justices currently sitting on the Supreme Court are in the top ten most pro-corporate justices in a half century—and Justices Alito and Roberts are numbers one and two. . . .  The Chamber of Commerce is now a major player in the Supreme Court, and its win rate has risen to 70% 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.

The main study Warren cites is by academics Lee Epstein and William Landes, and Judge Richard Posner, published recently by the Minnesota Law Review (known in scholarly circles as the “ELP Study,” with apologies to the bad 70s rock band with a similar name).  The authors constructed data bases consisting of more than 2,000 Supreme Court cases involving business litigants over the past 65 years and, after reviewing and coding these cases, came to the conclusion that “the Roberts Court is indeed highly pro-business—the conservatives extremely so and the liberals only moderately liberal.”  Looking at the votes of 36 Justices serving on the Court during this period, the authors concluded that “five of the ten Justices who, over the span of our study (the 1946 through 2011 Terms), have been the most favorable to business are currently serving, with two of them [Chief Justice Roberts and Justice Alito] ranking at the very top.”

Warren’s critics, most prominently conservative commentator Ramesh Ponnuru writing for Bloomberg, complain that the “court’s record on business . . . can’t be reduced to numbers”— a common complaint of folks who don’t like the numbers being used against them—and that evaluating the Court’s record “requires paying attention to the substance and logic (or lack of logic) of the court’s rulings.”  This is true to an extent, but the ELP study clearly meets this test.  The study explains that Judge Posner—an eclectic but generally conservative Reagan appointee to the federal bench who literally wrote the book on law and economics during his pre-bench career as an academic—read and personally coded hundreds of Court opinions to help ensure the accuracy of the study’s conclusions.  There’s probably no one on the planet more qualified to judge whether a case is pro- or anti-business than Richard Posner.  It’s telling that Ponnuru fails to even mention Posner’s involvement in the study in his attempted take down of Warren’s speech.  Talk about ignoring inconvenient facts.

Senator Warren also refers to studies by the organization I run, Constitutional Accountability Center, documenting the Chamber of Commerce’s success in more than 70% of the cases in which it has participated during the Roberts Court era.  Ponnuru claims this too is an “empty number” because it doesn’t say anything about how many cases the Chamber “should win.”  To evoke another bad 70s band, Ponnuru wants us to get stuck on existential numeral quandaries: “Does anyone really know what time it is?”   But again, he misses the point.

CAC’s Chamber studies reveal two critical facts that add weight to the ELP study findings.  First, we have documented that the Chamber’s success rate has improved dramatically over the past three decades, from approximately 40% at the end of the career of Chief Justice Warren Burger in the early 1980s, to more than 70% since John Roberts became Chief Justice and Justice Alito joined him on the bench.  Second, our studies have shown a sharp ideological divide on the Court in business cases that did not exist before the Roberts Court era.  Regardless of how many cases the Chamber “should win,” they are winning far more cases now than at any other time in modern history, and they are doing so because of a 5-4, pro-business majority on the Supreme Court.

As Adam Liptak of the New York Times recently put it,  “This Court, and this is really beyond dispute, is the most pro-business court since the Second World War” – one that’s “an open door for business interests.”  Exactly so.  Elizabeth Warren is right.

This post is cross-posted on Huffington Post

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