An academic study conducted by Lee Epstein, William Landes and Richard Posner confirms something many of us have only intuited till now:
[T]he business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.
In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.
Whether the Roberts court is unusually friendly to business has been the subject of repeated discussion, much of it based on anecdotes and studies based on small slices of empirical evidence. The new study, by contrast, takes a careful and comprehensive look at some 2,000 decisions from 1946 to 2011.
Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that 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.
The Supreme Courts’ pro-business orientation finds its most vivid expression in its ruling in an antitrust class action brought against Comcast by its subscribers who had charged that ‘the company had swapped territory with other cable companies to gain market power and raise prices.’ Justice Scalia ruled that plaintiff’s evidence did not permit them to proceed as a class; that they should pursue instead, individual litigation unlikely to be attractive to trial lawyers because of the smaller damages involved (thus effectively ensuring such litigation would not occur):
Plaintiffs’ lawyers…say class actions are the only way to vindicate small harms caused to many people. The victim of, say, a fraudulent charge for a few dollars on a billing statement will never sue. But a lawyer representing a million such people has an incentive to press the claim.
“Realistically,” Professor Miller wrote, “the choice for class members is between collective access to the judicial system or no access at all.”
So the Supreme Court’s rulings making it harder to cross the class-certification threshold have had profound consequences in the legal balance of power between businesses and people who say they have been harmed.
Furthermore, by reaffirming Wal-Mart v. Dukes, which had also thrown out a class-action suit, it further narrowed the scope of class-action suits and made them even more unlikely in the future.
All in all, a grand slam for big business. Dubya is gone, but not forgotten.
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