Corporate Accountability

U.S. Supreme Court Increasingly Favors Business, Study Says


The U.S. Supreme Court is more business-friendly today than it was 25 years ago, according to a study conducted by a group that advocates for environmental safeguards and civil rights.

The study by the Constitutionality Accountability Center in Washington takes issue with comments by Justice Stephen Breyer in a Bloomberg News interview earlier this month. Breyer said business groups aren’t doing any better than they have historically.

The group concluded that from 1981 to 1986 the U.S. Chamber of Commerce won less than half its cases at the Supreme Court, compared with about two-thirds over the past five years. Numbers compiled by the chamber show a more limited increase in the business trade group’s success rate.

“Justice Breyer’s flat wrong in suggesting that the chamber has always done well before the court,” said Doug Kendall, the Constitutionality Accountability Center’s president. “The Supreme Court’s modern pro-corporate tilt — and particularly its sharp ideological split in favor of the U.S. Chamber of Commerce — are relatively new  developments, traceable to the court’s current conservative majority.”

The Chamber of Commerce’s high court record in recent years has fueled contentions that the court harbors pro-business sympathies. The business lobby won at least a partial victory in 13 of the 16 cases in which it filed a brief during the court term that ended in June. Since the 1997-98 term, the group has won 74 percent of its cases, according its figures.

Breyer Correct?

That success isn’t driven by favoritism, according to Robin Conrad, the head of the chamber’s litigation unit. She pointed to recent decisions giving workers more power to sue employers for illegal retaliation.

Much of the chamber’s recent success stems from concerns among the justices about “lawyer-driven litigation,” Conrad said. “I just don’t think that translates into pro-business, and I think Justice Breyer was correct when he rejected that notion,” she said.

Breyer said in the interview that he had done his own historical research and concluded that the modern-day court doesn’t rule in favor of companies any more frequently than it has in the past.

“Business groups have always done well, winning a little bit more than half,” he said.

The Constitutionality Accountability Center study concludes that isn’t the case, at least during the 1981-86 period. The group says the Chamber of Commerce won 15 of the 35 cases in which it participated during that time.

Ideological Split?

The Chamber of Commerce faulted the study for basing its conclusions on only a small fraction of the 800 cases resolved by the court during the five-year period.

“This is a perplexingly small sample size,” Conrad said. “To me this looks like a theory in search of evidence.”

The study, which will be released later today, was provided in advance to Bloomberg News.

Kendall said his group chose the 1981-86 period because it immediately preceded the appointment of Justice Antonin Scalia, now the longest-serving current member. The group based its figures on searches of legal databases, casebooks collecting Supreme Court rulings and briefs on file at the Library of Congress.

A separate Constitutionality Accountability Center study released earlier this year said that business issues often divide the justices ideologically, with Chief Justice John Roberts and Justices Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito tending to side with companies.

Campaign Spending

The court divided on those lines in January in a 5-4 decision that overturned decades-old restrictions on corporate campaign spending. The same five were in the majority in a 5-3 decision in 2008 limiting shareholder suits against a company’s banks and business partners. Breyer didn’t take part in that case.

Other business issues don’t produce an ideological breakdown. Thomas and Scalia have rejected business calls for limits on punitive damages, saying the Constitution doesn’t provide any protection against large awards. Breyer supports some limits on damage awards.

To read this story in Bloomberg Newsclick here.


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