Supreme Court becoming a tool for corporate interests

Court now sides with Chamber of Commerce two-thirds of the time

By Daniel Tencer
Sunday, December 19th, 2010

Those who have been arguing that the Supreme Court is growing more friendly to corporate interests while becoming less friendly to everyone else will now have statistical ammunition for their arguments.

A study has found that the Supreme Court under Chief Justice John Roberts has undergone a fundamental shift in its outlook, ruling in favor of businesses much more often than previous courts.

According to the Northwestern University study, commissioned for the New York Times, the Roberts court has sided with business interests in 61 percent of relevant cases, compared to 46 percent in the last five years of Chief Justice William Rehnquist, who passed away in 2005.
And the study notes the Rehnquist court itself was considerably more pro-business than earlier courts.

Meanwhile, a second study, from the Constitutional Accountability Center, has charted the growing influence of the US Chamber of Commerce on the courts. The chamber started filing amicus briefs with the top court three decades ago in an effort to prompt more business-friendly rulings.

According to the study, the Roberts Supreme Court has sided with the Chamber 68 percent of the time, up from 56 percent under the Rehnquist court, and noticeably higher than the 43 percent during the relevant part of Chief Justice Warren Burger's court, which ended in 1986.

Robin Conrad, VP of the Chamber's litigation unit, told the Times that her group's growing influence is not about an ideological court, but rather the result of the chamber's ability to argue cases better, as well as a shift in the cases it chooses to support.

“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.”

But Doug Kendall of the Constitutional Accountability Center told the Times his group's study was evidence that the court has grown more corporate-friendly over the years. He also said his study showed “a sharp ideological divide that did not exist before 2005," when Roberts ascended to the chief justice's chair.

Kendall says conservative-leaning judges are more likely to side with a conservative opinion -- and liberal judges with a liberal opinion -- than they have been in the past.

The chamber itself has benefited from the pro-corporate environment on the country's highest bench. This year, following the Citizens United ruling that upended nearly a century of campaign spending restrictions on corporations and unions, the chamber spent at least $75 million on the mid-term elections, campaigning against financial reform and climate change legislation, among other things, and donating primarily to Republican causes.

In all, shadow groups unofficially campaigning in the mid-term elections spent a quarter of a billion dollars on their efforts, a phenomenon possibly only thanks to Citizens United.

But the Times reports there is another phenomenon at work: The relatively recent practice of US solicitors general -- the lawyers who argue for the US government in front of the Supreme Court -- taking jobs as lawyers for large corporations.

This trend means corporations now have lawyers practiced at Supreme Court arguments working their cases.

Whereas solicitors general used to move on to work at law schools or private practices, "starting in 1996, every former solicitor general, with one exception, has gone on to supervise a Supreme Court practice at a major law firm, earning as much as $5 million a year," the Times reports. "The exception is Justice Elena Kagan, who joined the court in August."

The court is expected to rule soon in two cases that could once again benefit corporations. A case involving AT&T Mobility and another involving Walmart will challenge the practice of class-action lawsuits. If the court sides against customers in the AT&T case -- or against plaintiffs claiming gender discrimination at Walmart -- it could restrict or even end class-action lawsuits, which many legal observers say are among the most powerful tools to redress corporate misbehavior.