Corporate Accountability

Elizabeth Warren’s Defenders Love Bogus Statistics

By Ramesh Ponnuru


Senator Elizabeth Warren has been citing misleading statistics to make her case that the Supreme Court is increasingly under the control of corporations.


The study she relies on has several faults that make its results meaningless. It treats all cases as equally important: If a business suffers a momentous defeat in one case and wins a small victory in another, it’s treated as winning half the time. The study ignores cases that affect businesses a great deal but don’t involve business litigants. And it ignores the shifting context of the court’s decisions over time: If Chief Justice John Roberts were to rule in favor of letting new types of lawsuits against businesses proceed half the time, where his predecessors approved all of them, the study’s methods would make him look “pro-business.”


The senator’s admirers respond to these points by kicking up a lot of dust. That’s the strategy employed by Doug Kendall, who runs a liberal legal advocacy group called the Constitutional Accountability Center, in response to my column on Warren’s claims.


First, he argues that one of the authors of the study, Richard Posner, is an acclaimed jurist and scholar who is “generally conservative,” and that he coded decisions as pro-business or anti-business with meticulous care. Kendall suggests that in omitting any mention of his involvement in the study I was “ignoring inconvenient facts.” Actually, I didn’t mention any of the study’s authors by name. I also didn’t raise any objection to the way cases were coded. If the study had been written by John Marshall himself — another pro-business chief justice, by the way — its results wouldn’t be any more meaningful.


Second, he cites his own organization’s study that shows that the U.S. Chamber of Commerce is winning an increasing percentage of the cases in which it takes part. That, too, is a meaningless statistic. If the chamber has decided to be more conservative about which cases it takes up, skipping longshots, the percentage increases.


And again, the question of context is ignored. Let’s say the chamber used to lose every time it tried to stop the court from opening new lines of litigation against businesses, and that nowadays it usually keeps that from happening but never gets a case before the court that shuts down the old lines. The law would still be turning more and more anti-business, but Kendall’s methods would make the chamber look more and more successful.


I also pointed out in my column that Warren uses shockingly bad evidence to claim that an increasing percentage of judges come from corporate backgrounds — a claim that seems to be the opposite of the truth. Kendall is too discreet to mention this problem. An inconvenient fact?

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