In an unfortunate interview with Bloomberg’s Greg Stohr, Justice Stephen Breyer rejected the notion that the Roberts Court is unusually pro-corporate because business interest “have always done pretty well.” Yet a new empirical study by the progressive Constitutional Accountability Center demonstrates that Breyer is mistaken. The study compares the right-wing Chamber of Commerce’s win-rate since Justice Alito joined the Court in January of 2006 to their win-rate twenty-five years ago, and the results are clear and undeniable:
If anything, this chart understates just how successful the Chamber’s powerful corporate lobby has been in stacking the Court with right-wing justices. The study also examines each individual justices’ votes, and finds that fully five of today’s justices — a majority of the Court’s members — are significantly more pro-corporate than the most pro-corporate member of the Court in the early 1980s (the study did not include the Court’s two newest members because of an insufficiently large data sample):
Also significant is the increasingly ideological nature of the Court’s votes on the Chamber’s cases:
The Burger Court, during the period of our study, was also dramatically less polarized by corporate cases than it is today. As noted above in our study of the Roberts Court, the average level of support for Chamber positions among the Court’s conservative bloc was 31 points higher than the average support for the Chamber by the Court’s moderate/liberal bloc (74% to 43%). There simply was not a similar ideological division revealed in our study of the Burger Court. For example, the voting records of then-Justice William Rehnquist, widely viewed as the most conservative member of the Burger Court, and Justice William Brennan, probably its most liberal member, differed by only three points – 46% Chamber support compared to 43%, respectively. Even Justice Lewis Powell – who worked for the Chamber before joining the Court, writing a now famous memorandum urging the Chamber to take advantage of a “neglected opportunity in the courts” – only supported the Chamber’s position 53% of the time, the highest percentage of any member of the Court during that period.
Significantly, this ideological shift in favor of corporations appears to be driven entirely by the Court’s conservative members. While a member of the Court’s more moderate bloc still votes with the Chamber 43% of the time — a rate that is comparable with conservative Justice William Rehnquist’s votes in the early 1980s — the five conservatives have become consistent votes for the Chamber’s position. In other words, left-leaning justices have largely stood still, while the Court’s conservatives sprinted into the arms of corporate America.
And there can be no doubt that the nation has suffered dearly because this corporate capture of the judiciary. In just the last few years, right-wing justices have immunized powerful corporate interest groups from campaign finance law, from laws intended to protect the environment, and from laws intended to protect women and older Americans in the workplace.