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| Chaffin Luhana LLP

According to several sources, today’s Supreme Court, led by Chief Justice John G. Roberts, Jr., has made decisions favoring businesses over the last several years. Now, a new study published in the Minnesota Law Review seems to have confirmed that opinion, stating that the current court has been more favorable to businesses than any other court since at least World War II.

Early Indications Supreme Court Supports Business

This isn’t the first time a study has suggested that today’s Supreme Court has made pro-business rulings more often than not. In October 2010, a study by the Constitutionality Accountability Center (CAC) in Washington showed that between 1981 and 1986, the U.S. Chamber of Commerce won less than half its cases at the Supreme Court, whereas between 2005 and 2010, they won about two-thirds of their cases.

"The Supreme Court’s modern pro-corporate tilt, and particularly its sharp ideological split in favor of the U.S. Chamber of Commerce," Doug Kendall, the CAC president told Bloomberg, "are relatively new developments, traceable to the court’s current conservative majority."

At the time, there was debate on the matter. The Chamber of Commerce blamed the CAC for using a small sample size in their study. Justice Stephen Breyer also disagreed, stating that partisan politics don’t influence the court’s actions.

New Study Confirms Business Leanings

Now this new study seems to support the CAC results. The authors of the study used two databases—one of 1,759 cases that were orally argued in the Supreme Court’s 1946 through 2011 terms, in which a business entity was either a petitioner or a respondent, but not both.

The second dataset consisted of 255 cases argued between the same terms, in which there was a business entity on both sides. The researchers also looked at 465 cases in which the New York Times published a story about the Court’s decision on either the front page or the business section.

The study conclusions included the following:

  • The two justices most likely to vote in favor of business since 1946 are the most recent conservative additions to the court (Chief Justice Roberts and Justice Samuel A. Alito Jr.).
  • Of the 36 justices who served over the 65 years examined, all five of the current court’s most conservative members were in the top 10 in pro-business votes.
  • The current court is taking more cases in which the business litigant lost in a lower court and reversing them than previous courts.

"The United States has become a more conservative country since the 1960s," the authors wrote. "One of our concerns in this article has been the extent to which the pro-business trend has manifested itself in decisions by the Supreme Court and in votes of the individual Justices."

Examples of Pro-Business Rulings

The New York Times notes a few examples of pro-business decisions by the Supreme Court:

  • including the Citizens United case, which allowed corporations to spend freely in elections;
  • the Comcast case, in which subscribers sought damages against the company for allegedly "swapping territory" with other companies to gain market power, which was not allowed to continue as a class action and was seen as limiting class actions overall;
  • and the Walmart v. Dukes decision, in which the court threw out a large employment sex discrimination class.

"The Supreme Court has altered federal procedure in dramatic ways," Arthur R. Miller, a law professor at New York University, told the Times, "…to favor the business community."

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