by Xan White, Research & Special Projects Associate, Constitutional Accountability Center

In an op-ed in Sunday’s New York Times called “Brandeis’ Seat, Kagan’s Responsibility,” George Washington University Law Professor Jeffrey Rosen hailed Justice Louis Brandeis’ text-and-history approach to the Constitution and the Justice’s warnings about the “curse of bigness.”  Rosen then cited a recent analysis by Constitutional Accountability Center (CAC) of corporate victories in the Supreme Court as part of his thesis that nominee Elena Kagan could learn from the Justice whose seat she hopes to fill, because the issues confronting the Court during Brandeis’ time are not dissimilar from today’s controversies.  According to Rosen:
Democrats repeatedly insisted during the Kagan hearings that the Roberts court has shown a pro-corporate bias — a charge supported by a recent study by the Constitutional Accountability Center, which found that in the term that just ended, the United States Chamber of Commerce won 13 out of the 16 cases in which it filed briefs, a success rate of 81 percent.
In an overheated bit of name-calling over at Bench Memos, Matthew Franck calls us “leftist number-crunchers” and labels our study “idiocy.”   Please.

To recap, our study involved tracking every case in which the Chamber of Commerce was involved between 2006 (when Justice Alito began participating in decisions) and June 2010.  We used the Chamber of Commerce’s success at the Court as a proxy for the success of corporate interests in general because the Chamber’s litigation wing advertises itself “as the voice of business in the courts on issues of national concern to the business community.”

The Chamber won 68% of the cases in our study, and 74% of closely divided cases. As Professor Rosen notes, the Chamber did even better during the Court’s 2009 Term, winning 81% of its 16 cases and five of six cases decided by a five-Justice majority. The Court’s conservative “bloc” (Chief Justice Roberts and Justices Scalia, Alito, Thomas, and Kennedy) gave 74% of its votes to the Chamber, compared with 43% from the Court’s moderate/liberal bloc (Justices Stevens, Ginsburg, Breyer, Souter, and Sotomayor).

Notably, Mr. Franck doesn’t dispute any of our statistics – quite simply because there is no basis on which to do so.  Instead, he argues that the numbers “tell[] us…nothing of any interest whatsoever, absent a persuasive analysis of the issues in each and every case under consideration.” [Italics his.]

It’s true that we did not attempt to decide whether the Chamber “should” have won or lost every issue in all sixty cases in our study.  That wasn’t the point of our report, and we never said or implied that it was.  We are quite certain, moreover, that Mr. Franck would have been completely unpersuaded if we had engaged in such a subjective analysis of what was the “right” answer.  At the same time, Mr. Franck’s claim that our objective, statistical study “eschew[s] all interest in the law” is also baseless.  We here at CAC have an intense interest in the law.  Indeed, it was our informed opinion that in at least some recent 5-4 decisions – most notably, Citizens United v. FEC — the Court departed from constitutional text and history in rulings that favored corporations, which triggered our interest in this study. And while our study on its own does not make legal conclusions, we’ve written extensively (in blog posts, issue briefings, narratives, and amicus briefs) about the legal issues involved in many of these cases.

We don’t claim to know how many times the Chamber “should” have won in the cases we studied.   We have also never claimed that our statistics constitute definitive proof of the Roberts Court’s pro-corporate bias.  Our report merely demonstrates that the Chamber is winning more than two-thirds of its cases since Justice Alito joined the Court, and that they win nearly three-quarters of the time when the vote is close.  The report also shows that members of the Supreme Court’s conservative bloc vote for the Chamber of Commerce’s position, on average, far more frequently than do members of the Court’s liberal bloc.  Mr. Franck thinks we’re idiots for finding these facts interesting and telling.  We’ll let our readers be the judge.