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Is the Supreme Court Truly Neutral When a Business is Sued?

| May 21, 2013 | General Interest

When a business is a party, does everyone stand the same before the US Supreme Court?
We know from the controversial decision in Citizens United corporations have been allowed to spend as much as they wished in the election process.  In other decisions the Roberts Court has shielded corporations from class action suits (Wal-Mart vs. Dukes), taken away right to jury trial by upholding arbitration agreements in what used to be called adhesion contracts (AT&T Mobility vs. Conception), severely limited human rights suits against corporations based on charges of complicity in abuses abroad (Kiobel v. Royal Dutch Petroleum), and limited consumers rights to hold generic drug companies responsible for failure to warn (Mensing vs. Pliva).

These high-profile decisions have led many commentators to allege bias in favor of corporations.  But is there any evidence to support this?

A recent article in the Minnesota Law Review, by Judge Richard Posner and Professors Lee Epstein and William Landes studied this question in their article entitled “How Business Fares In the Supreme Court”.  The study ranked the ranked the 36 justices who served on the court since World War Two over those 65 years by the proportion of their pro-business votes.  The study relied on a simple formula, looking at cases with a business on one but not both sides, such as the adversary might be an employee, job applicant, shareholder, union, environmental group or government agency of the 1759 cases that were orally argued in the Supreme Court from 1946 through 2011.  A vote for the business was counted as a pro-business vote.

The study found, “the Roberts court is indeed highly pro-business — the conservatives extremely so and the liberals only moderately liberal.”  Of the 36 Justices studied, all five of the current court’s more conservative members were in the top 10.

What Justices are most likely to Vote for Business?

According to the study, the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.  Since World War II, the Minnesota Law Review study found, “justices appointed by Republican presidents are notably more favorable to business than justices appointed by Democratic presidents.”  The study continued, “On the current court, no Republican-appointed justice is less favorable to business than any Democrat.”  The authors also found that “after the appointment of Roberts and Alito, the other three conservative Justices on the Court became more favorable to business…”

The study also noted that while the Supreme Court grants one out of every 100 petitions presented to it, for requests by the Chamber of Commerce, the business lobby, there was a vastly different result.  32%of the petitions presented by the Chamber were granted.  When a business petition is granted that generally means “that the Court has reversed an anti business decision, so the more pro business the Court, the more petitions by business litigants it can be expected to grant.”

In an article by Adam Liptak about the study in the New York Times on May 4, 2013, Erwin Chemerinsky, the dean of the law school at the University of California, Irvine, stated, “The Roberts court is the most pro-business court since the mid-1930s.”

Who are the Authors?

Lee Epstein teaches law and political science at the University of Southern California.  She is a Co-Editor of the Journal of Law, Economics & Organization, President of the International Society for New Institutional Economics, a member of the Board of Directors of the American Academy of Political and Social Science, chair of the Law School Admission Council’s Grants Subcommittee, and Principal Investigator of the National Science Foundation funded project on the U.S. Supreme Court Database

William M. Landes is an economist at the University of Chicago.  He joined the faculty of the Law School in 1974 and was the Clifton R. Musser Professor of Law and Economics in the Law School from 1992 to 2009.  Mr. Landes has written widely on the application of economics and quantitative methods to law and legal institutions, including torts, intellectual property, judicial behavior, legal decision-making, and art law.  Judge Richard A. Posner was appointed the Circuit Court in 1991 by President Reagan and elevated to the Court of Appeals in 1993.  He also teaches law at the University of Chicago, and has written a number of books including Economic Analysis of Law (8th ed., 2011), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), A Failure of Capitalism: The Crisis of ’08 and the Descent into Depression (2009), and The Crisis of Capitalist Democracy (2010), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press.

Click here to read the full New York Times article: Corporations Find a Friend in the Supreme Court