New York Times reporter Adam Liptak recently published an interesting article on the controversy over whether the Roberts Court is “pro-business.” The article is much more balanced and nuanced than the accompanying headline (which probably, as per usual practice, was not written by the author): “Justices Offer Receptive Ear to Business Interests.” Liptak cites a wide range of experts on both sides of the controversy (including co-blogger Jonathan Adler, who last commented on this issue here). He also explains some of the difficulties involved in trying to determine whether or not the Court has a “pro-business” bias.
Nevertheless, both the article and most other discussions of the issues still have two important weaknesses: failure to consider the underlying quality of the two sides’ arguments in “pro” and “anti” business decisions, and the use of a crude definition of what counts as pro-business.
I. A Pro-Business Bias Relative to What?
Liptak discusses at some length the result of a recent study showing that “business” interests won 61% of “economic” cases in the Roberts Court, compared to 46% during the last few years of the Rehnquist Court. But this proves the existence of a pro-business bias only if unbiased decision-making would have led to a lower win rate for business. What percentage of these cases would business have won if the judges were totally unbiased? How good were the legal arguments on each side? If, for example, business “deserved” to win 80% of these cases on the merits, then the 61% win rate would reflect an anti-business bias rather than a pro-business one.
During his tenure as head of the NAACP Legal Defense Fund in the 1940s and 50s, Thurgood Marshall won 29 of the 32 civil rights cases he argued in the Supreme Court. Was that because the Court was “biased” in favor of civil rights plaintiffs or because many state governments in that era abused civil rights so severely that it was easy for skilled litigators at the NAACP to find egregious instances of discrimination that were very hard to defend in court? The justices of that era really were sympathetic to Marshall and the NAACP, but it would be a huge mistake to underrate the nature of the cases he argued. Obviously, “business” is not an oppressed class in the sense that southern blacks were prior to the 1960s. But the vast size and scope of the modern regulatory state makes it easy for skilled business lawyers to find cases where regulators or lower courts have overstepped their authority. That may explain the impressive recent 68% success rate of the Chamber of Commerce, cited by Liptak. Like Thurgood Marshall, the Chamber’s highly competent lawyers try hard to pick winners and steer clear of losers.
None of the studies and experts Liptak quotes address this problem. In fairness, doing so would be difficult. The question of how various cases “should have” come out is itself debatable, with experts often disagreeing among themselves. But the issue is unavoidable if one wants to prove the presence of bias as opposed to merely show that some group won or lost X percent of its cases.
II. What Counts as a Pro-Business Decision?
The second problem with the arguments cited by Liptak is that they rely on a very crude definition of what counts as a “pro-business” decision. In general, they count any case where a business has prevailed on a regulatory, antitrust, employment, or environmental issue as “pro-business,” and the reverse as “antibusiness.” This approach has a variety of weaknesses, some of which I previously covered here and here.
One problem is that many such cases have business interests on both sides. For example, a victory for antitrust defendants is counted as “pro-business.” But most antitrust plaintiffs are businesses themselves who are suing their competitors, usually for the purpose of increasing their own profits. I don’t see any reason to assume that the plaintiffs in these cases are any less “pro-business” than the defendants.
Even in regulatory decisions where there are no business interests directly involved on one side of the case, there are often outside business interests who will benefit if the business litigant loses to the government or a private individual. For example, businesses often benefit from increased regulation that increases their competitors’ costs or makes it difficult for new entrants to come into the market. Increased regulation of the oil industry benefits businesses that produce other types of energy. Increased labor regulation often benefits big business at the expense of small businesses that compete with the larger firms (because big businesses can more easily deal with larger regulatory burdens). Sometimes, business interests are heavily affected by a decision even if none of the parties to a case were commercial firms. For example, Ricci v. DeStefano, the famous 2009 case where the Supreme Court curtailed affirmative action in employment testing, made life hard for many businesses by making it more difficult for them to use race-conscious measures to avoid Title VII disparate impact litigation. Yet none of those who claim that the Court displays a “probusiness” bias count Ricci as a pro-business decision.
Overall, the pro-business vs. anti-business frame is a lot less useful for understanding legal decisions than many people believe. Very few important legal issues pit an undifferentiated business interest against an undifferentiated consumer, employee, or “Main Street” interest. In most cases, some important business interests will gain and others will lose no matter which way the Court comes out.
The widespread contrary belief is mostly due to an unjustified conflation of “pro-business” with pro-free market or anti-regulatory outcomes (I previously criticized this error here, here, and here). Once one recognizes that there are many business interests that often benefit from greater regulation and many non-business interests that are often harmed by it, the pro- vs. anti-business model starts to collapse of its own weight.
UPDATE: Ted Frank makes some related points here.
1040 says:
Well, live by the sword, die by the sword. Business interests and their allies have very successfully painted an environment or government that supports tighter regulation, more labor safeguards etc. as anti-business, so that’s merely the terminology Liptak is using.
December 20, 2010, 11:01 pmHans Bader says:
The Supreme Court is actually more hostile to business than the lower federal courts, as I explain here at this link. It’s somewhat anti-business in the area of employment discrimination law.
It’s also less sympathetic to prosecutors than the lower federal courts.
December 20, 2010, 11:44 pmJay says:
It seems like those results could be explained mostly by the incredible success rate federal prosecutors, and employment defendants, have in the lower courts, combined with SCOTUS’s discretionary docket. People charged with federal crimes are typically guilty, and a great many meritless employment cases are brought. Assuming the Supreme Court is hearing the cases that do raise difficult questions, it’s not surprising that the relative success rates of prosecutors and employers are going to be lower than in the lower courts, which must decide every case brought before them.
December 21, 2010, 12:01 amIlya Somin says:
Business interests and their allies have very successfully painted an environment or government that supports tighter regulation, more labor safeguards etc. as anti-business, so that’s merely the terminology Liptak is using.
Of course these same interest groups also agitate for government intervention (tariffs, bailouts, anticompetitive regulations, etc.) whenever it suits their interests to do so. So why should the rest of us accept their terminology, when even they themselves don’t use it consistently?
December 21, 2010, 12:17 amBruce Hayden says:
Being a bit cynical here, but this doesn’t surprise me all that much. The trial courts are the ones that see the same law enforcement people all the time, see the criminals, and as a result, tend, more often than not I think, to side with the government over the criminals. I think that this sometimes gets a bit egregious in state criminal courts, with the judges seemingly accepting on occasion fairly implausible testimony by cops, but expect that some of the same dynamic applies, though to a lesser extent, to federal district courts. For one thing, the Supreme Court only has the record in front of them, and cannot see how much more polished the cops are, as professional witnesses, than the defendants are whom they are testifying against.
December 21, 2010, 12:37 amAllan says:
Actually, the way this country is structured, it makes perfect sense that government institutions are “pro-business.” If, as George Will (and others) point out, spending money is a component of free speech, then it is most likely that those with the most money will get their way at most levels of government. Moreover, this is a stereotypical conceit of liberals, i.e., conservatives favor businesses over individuals.
Basically, the status quo is set up to help those with money preserve their money. Conservatives, by their nature, want to preserve the status quo. Ergo, a conservative court will help preserve the interests of the monied.
This is not necessarily a bad thing, for if it were not the case, we might have chaos and would certainly not have the republic we have now.
December 21, 2010, 12:39 amJandrew says:
Maybe I don’t quite understand this passage, but shouldn’t the last “pro-business” be “anti-business”?
December 21, 2010, 12:48 amNick says:
In a later article in the New York Times, we find out if the Roberts court is less “pro-America” than the Rehnquist court.
December 21, 2010, 12:51 amJohnC says:
I think you raise great points. Terming the Court as pro v. anti-business is way too simplistic of a viewpoint. However, the article fails to raise the issues with Citizens United that so many of us legal scholars have. Most likely the author felt that raising this issue would have opened too big a can of worms, yet this single decision is what has alarmed jurists across our country. The idea that corporations can influence our political process as just another innocuous form of organization of people is completely anathema to anyone who has studied them in any depth- much less actually passed an exam in corporations. They are strictly designed for profit, and to give them a “say” in our political process is what has most legal scholars wondering where we all went wrong. This Court’s conservative block – Scalia, Thomas, Alito, and Roberts – is an abomination. I love and respect many conservatives, honestly I do, but to pretend these people are anything but intellectually dishonest is to pretend that the sun revolves around the Earth and not the other way around.
December 21, 2010, 3:33 amSteve says:
Given the Supreme Court’s virtually unfettered power to control its docket, analyses of this sort are guaranteed to be meaningless.
December 21, 2010, 3:54 amWidmerpool says:
I think Mr. Liptak is trying to wrestle the “politics disguised as legal analysis” award away from Ms. Lithwick. Now there would be a fine name for a Dickensian law firm: “Liptak & Lithwick.”
December 21, 2010, 8:54 amlgm says:
The difference between Liptak’s article and Somin’s post is data. Liptak has it and Somin doesn’t. Somin doesn’t refudiate (thank you Sarah Palin) Liptak by speculating that some cases could be reclassified. Given that there aren’t that many cases, and this blog has discussed many of them, it should be easy to look at them and see how Liptak’s graphs would change.
Data are not perfect, but Liptak is talking about a trend — the court has become more business friendly. Presumably the nature and quality of the cases has not changed that much. What has changed is the decisions.
December 21, 2010, 9:04 amgeokstr says:
While I know that you meant this as a slam on Palin’s intelligence, the New Oxford American Dictionary declared “refudiate” to be its Word of the Year. From an article in the LA Times:
So here is a group that is quite expert on the use of words and language concluding that “refudiate” is actually appropriate in the context in which she used it.
And it does indicate something else – at least she does much of her own writing, instead of writing nothing and just reading off a TP.
December 21, 2010, 9:33 am1040 says:
This is a fine argument, but would be more compelling if one also complains when anti-business is used as a coarse debate-ending technique and a rhetorical cudgel against any sort of regulation, not just when pro-business is used as part of a long and thoughtful article backed by analysis.
December 21, 2010, 9:50 amlgm says:
Another post that is not data driven, as if I were to write: “I know you defend Palin because … (insert fantasy here)… “
December 21, 2010, 10:04 amTuesday round-up : SCOTUSblog says:
[...] is more pro-business (or less anti-business) than the courts it is reviewing.” Similarly, at the Volokh Conspiracy Ilya Somin discusses the article in depth and contends that the article has “two important [...]
December 21, 2010, 10:04 amAllan says:
LGM
Your defense is nonsensical. Refudiate was not a word when Mrs. Palin used it. Consequently, criticism is fair.
That others find that this is a new word is irrelevant, unless we can also conclude that Mrs. Palin was attempting to invent a new word (I don’t think she was).
Under your theory, using “gooder” would be be proper. I can understand what is means, but it is not proper English.
So, either Mrs. Palin is a fool or she is fiendeshly brilliant. Occam’s razor says we go the fool route, but I am open to the other argument. But I have seen little to support it.
December 21, 2010, 11:16 amGuest14 says:
Did you really just say “presumably” in a post complaining about someone not using data to back up their point?
December 21, 2010, 12:28 pmJoe says:
As a general matter, if relatively true (and sure, it’s hard to quantify totally), this is totally unsurprising.
The Supreme Court is not selected by non-political actors. They are nominated and confirmed by political actors. The people there as a whole (and this includes Breyer, opposed by various business critics) are more sympathetic to business interests, this fact affected by whom nominated/confirmed them. This shouldn’t be seen as a dig. If they are right, business deserves more support.
But, even this is deemed somewhat controversial, since there appears to be some taint to supporting business interests more. Telling point, I think, but whatever. It is hard to take seriously on some level.
December 21, 2010, 12:31 pmHasdrubal says:
But corporations already have a tremendous voice in the political process through lobbying legislators AND regulators, and no rule change is really going to take that away: As long as there are people who know insiders, there will be back channel lobbying. Why do you think Citi hired Orszag even though he isn’t allowed to lobby directly?
Campaign related speech is more like advertising. Although advertising is much maligned and there are plenty of examples of meaningless drivel, the net effect of advertising actually lowers prices and educates consumers.* Is there any reason to think that the net effect of political campaigning can’t be similar?
In fact, can’t direct nefarious campaigning by corporations be pretty easily countered? I bet 9 out of 10 candidates would be able to get a 10 point bump in the polls if they pointed at an ad and said “Look, Wal Mart doesn’t want me elected!” At the same time, it would be pretty useful information if Wal Mart came out on television and explained that the primary opponents of it opening its own in store bank were other banks.
* http://www.econlib.org/library/Enc/Advertising.html is the source on my advertising claim with reference to several journal articles at the bottom.
December 21, 2010, 1:48 pmJohnC says:
I think you are startlingly misguided in your analysis, I must say. Equating lobbying legislators and regulators through back channels – while we police bribes to the extent we can (obviously this needs to be done more in light of recent events, there is going to be a Spacey movie about Abramoff in case you all haven’t heard of it yet) – with outright corporate sponsorship through advertising of political candidates merely obfuscates the issue. Are you arguing FOR business lobbying/bribing legislators and regulators? I will assume arguendo that you are not. In that case, your logic is that businesses already influence our political process so let’s just let them do what they will. Such rationalizations of failure are unproductive. We live in a democracy where wisdom should be prized, and not bow down to those who have gathered the most money. Lastly, I should respond to your point about a candidate pointing out that Walmart isn’t backing them since this, also, is incorrect. The effect of allowing corporate advertisements of candidates will greatly overshadow such minor pleas by opposing candidates. Statistics are not needed here, anyone with common sense can see that if you are flooding the airwaves with ads and I am pleading with the people, my voice will not be heard. This is how large companies continue to succeed when they have been proven to behave in unethical and morally corrupt ways. Thanks for your time, though, I really do appreciate the intellectual back and forth.
@geokster: P-shah. Simply pointing out that the OED has decided that Palin’s incorrect usage is so unclear that they should call it a new word since her popularity has convinced people to use the word themselves, proves nothing. The OED is doing this as a tongue in cheek gesture towards the stupidity of Palin who cannot even use the English language correctly. They are not the grand arbiters of anything. To generalize, people such as yourself who are obviously five times more educated/smarter than Palin and still defend her are just being contrarians. It may be fun to do at a tea party (LOL), but it doesn’t improve the discourse.
December 21, 2010, 3:55 pmJohnC says:
Not if they are trying to regulate those very business interests. In that case, it is a bad thing. And, conservatives are generally pro-business as liberals are generally pro-regulation… I don’t see what you’re getting at there.
@ Jandrew… You are obviously for the sake of your own argument not pointing out its biggest flaw. People who are arguing that the Court is pro-business are not talking about Ricci since it was most likely decided based on the Court’s views on affirmative action, not anti v. pro-business. As I stated in one of my earlier comments, however, the pro v. anti-business discussion of the Court does not provide much insight since it does not go to the merits of each case. If, for example, there were many cases in front of the Court where lower courts had sided against businesses for the wrong reasons either legally or on the facts in the record, then all of those cases should have been decided for the businesses. I just think the conservatives on the Court are far too radical for our country in this era. Scalia’s originalism is intellectually and historically fall-on-your-face wrong (have you ever read what the founding fathers said about how to interpret the Constitution?), Thomas’ opinions in all but one or two cases are just illogical, and Roberts and Alito I will have to see more from until I make a final judgment but from what I have seen Roberts is like a new Scalia (a conservative radical with his own set of principles that don’t really comport with the rest of Americans or the history of the Constitution), and Alito is like a new Thomas. This does not bode well. I don’t even think Sotomayor will be that great, either, but she is unlikely to do anything too radical. I wish that more justices on the conservative side could be moderately conservative like NYC’s Bloomberg and not revisionist legal historians.
December 21, 2010, 4:14 pmAllan says:
John C,
Are you seriously going to argue that Roberts, Scalia, Thomas, and Alito are not pro business?
Thomas has a slight pro-EEO bent, given his history. But otherwise, all those four have to do is get Kennedy on board and business has a smooth ride to the bank.
December 21, 2010, 4:20 pm1040 says:
There is absolutely no disclosure requirement with corporate funding of politicians.
December 21, 2010, 4:38 pmRandal Milch says:
One aspect that was missing from the NYT article and seemingly from the critiques above is absence of any analysis of what i believe is the sharply increasing level of court- and legislatively made regulation of “business” across the decades in question. The discretionary nature of the Court’s docket aside, layer upon layer of regulation creates a target-rich environment, and the “pro-business” decisions of the Court barely make a dent.
December 21, 2010, 4:46 pmHans Bader says:
The Supreme Court actually is less sympathetic to business than the lower federal courts, and by any reasonable measure, is mildly anti-business in employment discrimination cases.
I noted that above, but the link to the article that I provided above (discussing the Supreme Court’s decisions at greater length) does not work (at least temporarily).
Here is a link that (at least temporarily) works.
December 21, 2010, 5:46 pmStephen Lathrop says:
I take any claim that advertising lowers prices as propaganda from the ad industry. First of all, the ads have to be paid for. But more important, the purpose of a lot of advertising is to create artificial scarcity through branding. Rolled oats are an abundant commodity, and they trade at far lower prices than Quaker oats, which are identical except for the branding. The entire strategy is to separate out a small segment of the commodity market and thus get a better price. The propaganda in the ads accomplishes that. Has to be paid for, but it pays for itself many times over when it works. The notion that anything in that process is also edifying is mysterious to me.
December 21, 2010, 10:48 pmStephen Lathrop says:
I take any claim that advertising lowers prices as propaganda from the ad industry. First of all, the ads have to be paid for. But more important, the purpose of a lot of advertising is to create artificial scarcity through branding. Rolled oats are an abundant commodity, and they trade at far lower prices than Quaker oats, which are identical except for the branding. The entire strategy is to separate out a small segment of the commodity market and thus get a better price. The propaganda in the ads accomplishes that. Has to be paid for, but it pays for itself many times over when it works. The notion that anything in that process is also edifying is mysterious to me.
December 21, 2010, 10:48 pmmarkm says:
JohnC: “The idea that corporations can influence our political process as just another innocuous form of organization of people is completely anathema to anyone who has studied them in any depth…”
Are you referring to the corporations that own the New York Times and CBS? Or is it just corporations that lean conservative that bother you?
December 24, 2010, 3:42 pm