The End of Term Rulings, the Kagan Hearings, and the Pro-Corporate Tilt of the Roberts Court

As the Supreme Court prepares to hand down its end-of-term blockbuster rulings, and with Elena Kagan’s confirmation hearings set to begin on the day the Court’s last opinions are handed down, CAC is today issuing two new reports that document the Roberts Court’s trend of ruling in favor of large corporate interests and against “We the People.”   The two documents are an issue brief called Citizens United Redux?: Sarbanes-Oxley, Jeffrey Skilling and the End of Term Rulings of the Roberts Court, and a statistical study called The Roberts Court and Corporations: The Numbers Tell the Story, which reveals how often the Court and the individual Justices rule in favor of corporate interests.

These reports follow the Court’s widely-condemned decision earlier this Term in Citizens United v. Federal Election Commission, in which the Court struck down nearly a century of regulation limiting corporate spending on elections.  President Obama criticized the decision for handing “a huge victory to the special interests and their lobbyists – and a powerful blow to our efforts to rein in corporate influence.”  Senate Judiciary Committee Chairman Patrick Leahy has been even more vocal and persistent, holding numerous hearings on the rulings of the Roberts Court that unfairly disadvantage hard-working Americans, and hailing General Kagan’s potential confirmation to the Court as a welcome counterweight to the Court’s “activist conservative majority.”  This activism has come to light in other high profile rulings in past Terms, such as Ledbetter v. Goodyear (2007), dismissing Lily Ledbetter’s lawsuit seeking relief for years of unequal pay, and Exxon v. Baker (2008), the case drastically reducing the punitive damages owed to the victims of the Exxon Valdez oil spill.

CAC’s issue brief reveals why, by the end of June, rulings by the Court could cement the public’s impression that the Roberts Court tilts too heavily towards corporate interests.  For instance, in Free Enterprise Fund v. PCAOB, the Court may strike down a major portion of the Sarbanes-Oxley Act, Congress’ response to the country’s last financial crisis in 2001 and 2002, caused by the Enron and WorldCom accounting scandals.  In three related cases, the Court might also hold unconstitutional all or part of Congress’ “honest services fraud” statute, which has been one of the main criminal laws used in successful recent corruption prosecutions of notorious white collar criminals such as Randy “Duke” Cunningham, William Jefferson, Jack Abramoff, and former Enron CEO Jeffrey Skilling – whose conviction is at the center of one of the cases.  Finally, in Rent-A-Center v. Jackson, the Court may add to a long line of rulings that force aggrieved consumers and employees out of court and into arbitration proceedings that are structurally biased to favor corporations.

CAC’s statistical study tests empirically the idea that the conservatives on the Roberts Court tend to side with corporate interests.  Our study examined every opinion released by the Roberts Court since Justice Samuel Alito began participating in decisions, and in which the U.S. Chamber of Commerce was either a party or an amicus curiae — a universe of 53 cases.  This study reveals an overall success rate for the Chamber of 64% (34 victories in 53 cases), and a success rate of 71% in cases decided by a narrow (five-Justice) majority.   The Court’s conservatives (Chief Justice Roberts and Justices Antonin Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy) tend to vote together in their support for the Chamber, while the Court’s moderate/liberal bloc (including former Justice David Souter, who was on the Court for most of these rulings) was more centrist, casting only 41% of its votes in favor of the Chamber.

These data strongly support the proposition that there is a strong ideological component to the Justices’ rulings in business cases, with the Court’s conservatives frequently adopting the Chamber’s position.    In one particularly startling finding, Justice Alito, since joining the Court, has never cast a vote against the Chamber of Commerce’s position in a closely divided case. This statistical evidence supports the charge by President Obama and Chairman Leahy that the Court’s conservative majority has a disturbing pro-corporate tilt, and this reality should provide an important frame for General Kagan’s upcoming confirmation hearing.  CAC will be liveblogging General Kagan’s testimony, direct from the Senate hearing room, for Huffington Post.  Please check back with Text & History for more information and a link to our liveblog.

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