The Corporate Court

One thing that’s been frustrating progressive lawyers for a few years now, but increasingly so over time, is the belief of the public and the press that the federal judiciary is primarily a venue for tackling “hot button” issues like abortion and the death penalty. In reality, the bulk of federal litigation has to do with businesses suing each other, workers or consumers suing businesses, or businesses trying to fight off regulators.

The Constitutional Accountability Center has a new study out (PDF) that takes a look at this issue through the lens of the US Chamber of Commerce, the premiere group that can be found arguing that corporate executives should be able to get away with doing whatever they want. Here’s how often different justices sided with the Chamber’s position on cases the Chamber weighed in on:


We can see that this is a substantial divider between the court’s five conservatives and its four non-conservatives. The gap between Kennedy and Souter is much larger than the Kennedy-Alito gap or the Souter-Ginsburg gap.

And a look at the close cases decided by 5-4 votes is even more telling:

closecases 1

Of the 17 cases decided by a five‐Justice majority, 12 (71%) resulted in victories for the Chamber. In these cases, the conservative bloc voted for the Chamber 84% of the time, compared to only 15% for the moderate/liberal bloc. Strikingly, in these close cases, Justice Alito never cast a vote against the Chamber of Commerce’s position.

Now maybe you think that business interests have a hard time getting a fair shake in the Congress and at the White House. Certainly I would say that one problem with the political process is that it’s difficult for members of geographically dispersed minority groups to get a fair hearing there, so one positive thing the courts can do is help groups like that out. Maybe you think business interests are the same way. It’s just hard for a CEO to get his calls returned, or to get anyone to take his campaign contributions or look at the research documents his lobbyists called up. So maybe that’s why it’s so important for the judiciary to give them an extra helping hand. Maybe.