SCOTUS and Big Business, Sitting in a Tree? New Study

Comcast. Dukes. Concepcion. Heck, Citizens United. The big-name pro-business rulings have come aplenty in this present incarnation of the Supreme Court. Is this a case of big names triggering the availability heuristic -- the principle that noteworthy events figure more prominently in our minds? (Planes are safer than automobiles, even though a plane crash makes the news.)

Or, do the stats back popular perceptions?

We Missourians live by one credo: show me, don't tell me. A study published by the Minnesota Law Review, and conducted by Lee Epstein, William M. Landes, and the grand Judge Richard A. Posner of the Seventh Circuit did exactly that, and found that the numbers match the rumors.

Amongst the more notable findings:

• In a traditional conservative/liberal analysis, the Roberts court is only slightly more conservative than those led by Chief Justices Warren E. Burger and William H. Rehnquist.
• Business rulings, however, have come out quite differently. The study analyzed cases where business interests were on one side of the case only (business v. business disputes don't count, as they'd be a wash). Current justices make up five of the top ten most frequent pro-business votes.
• Even "liberal" Justice Ginsbug, who, according to the New York Times, read a passionate oral dissent in the Comcast case, calling the decision "not cricket," appears near the median of all justices since 1946.

It's not just the votes either. The Times highlights another study by SCOTUSblog's Adam Chandler that surveyed amicus activity. The Chamber of Commerce is the "cert.-stage champion," both five years ago, and in the recent update of the analysis. They file the most amicus briefs and, in the recent study, had the second-highest success rate in getting cert. granted.

The biggest impact of the court's ideology, however, seems to be felt in class action law. The Comcast ruling, which affirmed the earlier Dukes opinion, limits class actions based on a narrow interpretation of commonality. Commonality in injury must be proven in the initial stages of the case, before class certification, in order to even reach discovery. The Concepcion ruling allows businesses to escape class actions and force individual arbitration of small sums using an arbitration clause.

Whether the anti-class action rulings are a positive development is debatable. Often in class actions, the injured end up with $5 in store credit while the attorneys walk away with millions in fees. Then again, without class actions available, good luck to that plaintiff with a $50 injury -- no attorney could afford to take the case.

Related Resources:

• New Book Tracks History of Habeas Corpus in America (FindLaw's Supreme Court Blog)
• When in Doubt, Deny, Deny Deny (FindLaw's Supreme Court Blog)
• This Week at First Street: Arguments End and NLRB Showdown Begins (FindLaw's Supreme Court Blog)