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Have Business Interests Taken Control Of The U S Supreme Court?

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The New York Times looked at that question today and had some very interesting conclusions. The story is based on a study that was conducted by Lee Epstein, a political scientist at Northwestern’s law school; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, a federal appeals court judge in Chicago and professor at the University of Chicago. The findings:

- The current docket is filled with an increased number of business cases.

- The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, much higher than the 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, and the 42 percent by all courts since 1953.

- The U S Chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber’s side.

The article also cites a study from the Constitutional Accountability Center, a liberal group, which examined the center’s success rate in the Supreme Court. It found that:

- The positions supported by the chamber prevailed 68 percent of the time in the Roberts court, compared with 56 percent in the last 11 years of the Rehnquist court, a period without changes in the court’s membership.

The article quotes Robin S. Conrad, executive vice president of the chamber’s litigation unit as saying:

“Why have we been successful?” she asked. “I’d like to think it’s because of the quality of the arguments and the briefs we present to the court.”

“The court is looking for reliable voices to confirm its decisions, and I’d like to think it’s looking to the chamber because it tells a straight story, and we try not to be shrill or ideological,” Ms. Conrad said. “The chamber has earned a reputation for being a credible voice of business.”

But who is the we they really represent? Is it the mom or pop businesses from down the street or is it their executive board of Ford, Verizon, Lockheed Martin, Viacom and GlaxoSmithKline? How many of those companies do you think have the consumer as their number one priority?

Now of course the usual voices are looking at this article and somehow arguing that these numbers don’t mean much. Point of Law gives us "The pro-business Supreme Court myth," which takes the position that the article and the study seem to actually say the opposite. As usual, I wonder if we are reading the same stuff. But considering that their response is written as if the Citizen United case never happened, they claim the forever-delayed Exxon case (which seemed to wait for the right court composition) was actually pro-plaintiff, and they ignore that the Court chooses what cases it takes, I guess you could write the contrary piece.

I did find it funny that a web sight that likes to use single plaintiff cases to support the proposition that tort reform will cure the country’s ills and only this week was praising the latest legal Hellhole list despite many of the placements being based on single verdicts, would look at 61% and say, "Gee, how could that be favoring one side"

Looking at what is coming up for cases they have on the docket, we probably will get a very good look at how far this court is leaning.