Under both the influence of U.S. Supreme Court Chief Justice John Roberts, and corporate spending in state courts around the country, procedural wins have imposed new onerous hurdles on individuals aiming to hold businesses accountable for their wrongdoing. Two new analyses out this week point to the real costs of these losses for individuals. In one study, researchers found that dismissals of housing and employment discrimination claims spiked from 62 percent before two major Supreme Court cases made it harder to state a claim, to 71 percent afterwards. Even more noteworthy, that spike in dismissals fell largely on Republican-appointed judges, whose dismissal rate spiked from 61 percent to 74 percent in cases where defendants disputed the legitimacy of the plaintiffs’ initial filing.

In a second analysis, two antitrust lawyers point to the “scant recognition” of the costs imposed on attorneys, courts, and experts when new decisions make the requirements at each stage of litigation increasingly more onerous, meaning these new barriers and corporate-driven “tort reform” make the legal system more expensive. J. Douglas Richards and Michael Eisenkraft write:

Contrary to widely propagated but fictitious notions unlike many corporate defendants and most corporate defense counsel, plaintiffs generally want to get their case before a fact-finder as quickly and inexpensively as possible. Helping them attain this end without repetitive prior evaluations of a case’s merits would promote judicial efficiency and reduce litigation expenses for all parties as well as for the courts.

In spite of these findings and increasingly business-friendly rulings both at the Supreme Court and in the state courts, the U.S. Chamber of Commerce came out with a study finding that the U.S. “liability system” is the most expensive of 13 countries analyzed because of so-called “lawsuit abuse” in which too many claims are filed that cost too much.

While this Chamber study was painted in a Corporate Counsel report as ranking the U.S. legal system overall the most costly, its only measure is the cost of liability insurance for businesses. The study seems to acknowledge that these costs are simply “liability costs” that affect businesses. But whether the Chamber is griping about costs to the legal system or costs to businesses, recent statistics show that individuals filing tort lawsuits that the Chamber has dubbed “frivolous” in a long-running PR campaign are not to blame. Statistics from the National Center for State Courts show that between 1999 and 2008, the tort caseload decreased by 25 percent, while the number of contract cases – primarily cases between one business and another – spiked by 63 percent.

(Credit: National Center for State Courts)

As of 2008, the number of incoming contract cases was six times the number of tort cases. This means that it is actually other businesses that are filing more cases against each other, and potentially (though not necessarily) driving up their own price of liability insurance. So-called “tort reform” movements in the states that seek to limit corporate liability and cap damage amounts rely upon the assumption that frivolous civil lawsuits alleging injuries and wrongdoing flood our courts. But it is actually business-to-business cases whose numbers are growing.

There are no doubt other factors that make our legal system more expensive, as is pointed out by the Chamber’s study. The costs of our common law system, for example, in which each case is argued on the basis of precedent and lawyers are required to navigate an impenetrable web of case law and statutes, make the costs of legal counsel sometimes astronomical. And, as compared to the European countries with more robust social safety nets, Americans must turn to the court system to recover for more types of losses (for example, in countries where health care is public, private corporations do not have liability in that area).

But however expensive an increasingly onerous litigation system is for businesses, it is that much more expensive for individuals, particularly when procedural hurdles and damage caps prevent them from ever recovering their losses.

In recent years, several reports and studies have observed the evident skew in favor of business of the U.S. Supreme Court led by Chief Justice John G. Roberts. Thus far, this term has proved to be no exception, with a 6-1 win rate by the U.S. Chamber of Commerce. And last month, three professors who are prominent in the conservative law and economics movement published what may be the most rigorous study yet on business success before the high court. After analyzing the some 2,000 decisions between 1946 and 2011 under various rubrics for what constitutes a business win before the court, the study confirmed previous conclusions that the Roberts court is significantly more pro-business than its predecessors. What’s more, they found that the most pro-business justices of all since 1946 are George W. Bush’s two appointees to the court: Justice Roberts and Justice Samuel Alito:

As illustrated above, the study also found that five of the top ten justices most favorable to business are currently serving — and they make up the court’s conservative block. It is unsurprising, then, that this court is not only siding with business more, but that it is granting more cases in which lower courts decided against business and overturning those decisions in favor of business interests. The professors explain:

Whether measured by decisions or Justices’ votes, a plunge in warmth toward business during the 1960s (the heyday of the Warren Court) was quickly reversed; and the Roberts Court is much friendlier to business than either the Burger or Rehnquist Courts, which preceded it, were. The Court is taking more cases in which the business litigant lost in the lower court and reversing more of these—giving rise to the paradox that a decision in which certiorari is granted when the lower court decision was anti-business is more likely to be reversed than one in which the lower court decision was pro-business. The Roberts Court also has affirmed more cases in which business is the respondent than its predecessor Courts did.

As a New York Times report on the study notes, prominent among these pro-business decisions are landmark rulings that include the Citizens United decision, a string of decisions eroding the mechanisms for holding corporations accountable as a class, and this term’s Kiobel v. Royal Dutch Petroleum, which shredded accountability for human rights abuses abroad, including those by corporations with some U.S. presence.

Continuing a dramatic winning streak that has spanned the Roberts Court era, the Chamber of Commerce has won six of its seven Supreme Court cases decided thus far this term. In all, it filed amicus briefs in 18 cases this term, making the top corporate lobby a preeminent Supreme Court influencer. The Chamber also files numerous petitions at at the earlier stage when the Supreme Court is deciding which decisions to hear, shaping its docket such that the Chamber is poised to have participated in 24 percent of the Court’s decided cases this term, according to a new report from the Constitutional Accountability Center:

Over the past thirty years, the Chamber’s participation rate has increased six-fold, from 4% in the early 1980s to 24% today.

This dramatic increase in participation is a reflection, in part, of the Chamber’s success in shaping the Court’s docket. As SCOTUSblog reported in early April, the Chamber remains “the country’s preeminent petition-pusher,” as it filed the greatest number of amicus briefs at the cert. stage of any private organization during SCOTUSblog’s three-year study period (running from May 2009 to August 2012). Importantly, the Chamber also has the highest success rate of any of the ten most active organizations during this period – with the Court granting 32% of the Chamber’s cases overall. Therefore, the Chamber is not just participating in cases that the Court decides to hear, but it’s also aggressively and successfully working to shape the Court’s docket.

The Chamber’s win rate has also increased dramatically in the Roberts Court, illustrated in the chart below:

Among the Chamber’s wins thus far this term were two 5-4 decisions that eroded the class mechanisms for holding corporations accountable, and the major ruling on the Alien Tort Statute that slashed accountability in U.S. courts for human rights abuses abroad.

The U.S. Chamber of Commerce is capitalizing on the radical federal appeals court decision that held unconstitutional several of President Obama’s recess appointments to help businesses skirt workers’ rights in as many cases as possible. In a memo to its members, the nation’s top corporate lobbying shop urged businesses seeking to challenge rulings against them by the National Labor Relations Board to “act fast” to file their appeal in the same court that ruled in their favor – the U.S. Court of Appeals for the D.C. Circuit – so that they could invalidate adverse NLRB actions before another court steps in:

If you are involved in any case where the Board has issued an adverse decision without a proper quorum, you should consider filing a petition for review in the D.C. Circuit. Any decision of the Board can be appealed to the D.C. Circuit; however, the Board may petition for enforcement in any circuit where an alleged unfair labor practice occurred, or where an employer resides or transacts business. Because other circuits may not reach an equally favorable conclusion on the recess-appointment issue, it may benefit you to act as quickly as possible to ensure that you file your petition in the D.C. Circuit first.

In addition to urging its members to appeal all adverse rulings, the Chamber is taking its own measures to challenge NLRB actions that occurred even before Obama’s January 2012 appointments. Relying upon the sweeping and unsupported reasoning of the decision – which suggests that hundreds of recess appointments made over the last 150 years are unconstitutional – the Chamber is seeking to invalidate 2011 union rules issued by the NLRB.

But as the Chamber acknowledges in its own guidance, other circuits (and the Supreme Court) may soon come to contrary conclusions, as they have in the past. After all, the January 25 ruling by three Republican-appointed judges defining “recess” in the narrowest possible terms disregarded 150 years of modern history and the longstanding practice of presidents from both political parties of making appointments to executive branch vacancies that urgently need to be filled while Congress is out of session.

President Obama’s January 2012 recess appointments to the NLRB, for example, prevented a total standstill by the agency, which is legally prohibited from functioning without at least three members. Likewise, his appointment of Consumer Financial Protection Bureau Agency Director Richard Cordray was necessitated by senators’ wholesale refusal to confirm anybody to the new agency unless its fundamental structure was altered. The agency was prohibited from performing several core functions without a director in place.

As NYU law professor Sally Katzen explains in the Washington Post, senators’ increasing tendency through the filibuster to hold entire federal agencies hostage by refusing to confirm particular appointees is key to understanding the nature of modern recess appointments.

This burgeoning movement by the Chamber previews the chaos that is likely to errupt as conservative interests seek to invalidate as much agency action as possible. But in at least one sense, the Chamber’s reaction is more measured than it could have been. While the Chamber at least acknowledges that businesses seeking to expand the scope of the ruling will have to go through the court system one case at a time, a hospital chain announced last week it would simply cease complying with all recent NLRB rulings, falsely claiming that the D.C. Circuit’s decision automatically invalidated any NLRB action since last January.

Yesterday, U.S. Chamber of Commerce president Tom Donohue delivered his “State of American Business” address, in which he laid out the wealthy corporate lobbying group’s agenda for the coming year. After using several questionable statistics to attack regulations intended to protect the environment or prevent Wall Street from triggering another economic crisis, Donohue’s speech includes a promise to unleash a barrage of well-compensated lawyers to help immunize corporate America from these regulations. “You are going to see us significantly expand the expertise in our law firm, the National Chamber Litigation Center and in other areas of our institution, in order to deal with regulations. Our preference is always to work within the legislative and regulatory processes and we do that on a daily basis. But when rights have been trampled on, or regulators have overstepped their bounds, we’ll take the necessary legal action.”

So long as the Supreme Court’s current majority sits, the Chamber’s threat needs to be taken seriously. One of the Chamber’s top attorneys, Supreme Court litigator Carter Phillips, claimed in 2007 that “[e]xcept for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center.” If anything, this understates the corporate lobby’s success before the Roberts Court. According to a 2010 study by the progressive Constitutional Accountability Center, the Chamber’s victory rate before the Supreme Court spiked 15 points once Chief Justice Roberts took the Court’s center seat. In total the Court favors business interests 61 percent of the time.

Indeed, the Roberts Court is so favorable to the corporate lobby’s position that every single justice examined by the study was more likely to favor the Chamber’s position that the one who held that seat 25 years before:

If anything, the Roberts Court has become even more favorable to corporate interests since this study was conducted. In the term that concluded earlier this year, the Chamber went 7-0 before the justices — the first time since 1991 that the Chamber was undefeated in the nation’s highest Court.