In the New York Times on Friday, Adam Liptak writes that the Supreme Court under Chief Justice John Roberts has concluded another term in which, on the whole, conservative interests have won the day. Liptak and his sources attribute this chiefly to Roberts’s role as a “canny strategist with a tough side” who has “proved adept at persuading the court’s more liberal justices to join compromise opinions” that have moved the law of the land to the right. He notes in particular that the Roberts court has yielded a body of opinions that are increasingly “pro-business,” citing a study co-authored by University of Southern California professor Lee Epstein that documents the court’s recent “pro-business orientation.”
“We shouldn’t lose sight of the court cementing its legacy as the most pro-business court in the modern era,” Epstein told the Times. Liptak also quotes Doug Kendall of the liberal Constitutional Accountability Center, lamenting that these pro-business rulings always break down along ideological lines, with the swing justice Anthony Kennedy joining the four conservatives justices (Antonin Scalia, Clarence Thomas, Samuel Alito, and Roberts). “Anyone doubting that the most important story of the Roberts court is its business rulings has not been paying enough attention,” said Kendall. “This term’s 5-4 rulings, all favoring the [Chamber of Commerce], move the law sharply to the right and to the great detriment of consumers, employees, and other Americans trying to get their day in court.”
Outlets like the Huffington Post, U.S. News & World Report, and America Public Media have echoed these claims, with HuffPo’s Amanda Terkel referring to the Roberts Court’s “corporate tilt.” But are these decisions the result of a Roberts-led conservative coup on the Court, with the quartet of liberals struggling to keep back the corporate tide? The Chamber of Commerce, the business advocacy group that won 78 percent of the decisions for which it was involved, says no. According to the Chamber’s analysis of decisions of interest to the business community, the justices don’t always, or even often, align along the predictable ideological lines, and many of the “pro-business” or “pro-corporate” opinions are joined by members of the Court’s liberal bloc.
In the 2012 term, there were 33 decisions from the Supreme Court in the 2012 term “of interest” to the business community. (The Chamber defines this as cases in which either a business was a litigant or in which the legal issue at hand is of interest to a business or industry.) Just 7 of those 33, or 21 percent, were made along the traditional ideological lines, whereby the conservative justices or the liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) were joined by Kennedy in a 5-4 or 5-3 decision.
Two of the 33 decisions were made by “unconventional” 5-4 or 5-3 breakdowns in which a conservative and a liberal justice “switched sides.” For instance, in Maracich v. Spears, a privacy case, the justices in the majority were three conservatives (Alito, Roberts, and Thomas), one liberal (Breyer), and Kennedy, while the dissenters were three liberals (Ginsburg, Sotomayor, and Kagan) and one conservative (Scalia).
But the vast majority, 79 percent, of business-interest decisions made by the Court transcended those ideological lines—that is, the majority opinions were joined by members of both ideological camps. In City of Arlington, Texas v. FCC, for instance, the majority opinion was joined by Breyer, Ginsburg, Kagan, Scalia, Sotomayor, and Thomas, while Alito, Kennedy, and Roberts dissented. And in Kirtsaeng v. John Wiley and Sons, Inc., it was Alito, Breyer, Kagan, Roberts, Sotomayor, and Thomas in the majority, with Ginsburg, Kennedy, and Scalia in dissent. On top of that, 55 percent of these decisions were unanimous with an additional 11 percent with only two dissenting justices.
As a Wall Street Journal editorial pointed out last year, the business-interest decisions of the 2011 term were even more “bipartisan”:
This means that 93% of the cases were decided by majorities that cut across the usual ideological lines. Moreover, 18 of the cases (or 64%) were decided by lopsided majorities, in which there were fewer than two dissents. This latter category spanned cases on labor relations, free speech, telecom issues, broadcast regulations, securities litigation, patents, benefits and environmental rules. And of these, 13 were unanimous. The left tends to neglect these frequent moments of unity in its drive to portray the Roberts Court as radical and right-wing when it is neither.
As chief justice, Roberts undoubtedly has a level of influence in the direction of the Court’s rulings on issues affecting business. But more often than not, the liberal justices are contributing, too.
