Is the Business of the Court Business?

Sunday's New York Times Magazine featured an article by Jeffrey Rosen, "Supreme Court Inc." suggesting that there has been an "ideological sea change" on the Supreme Court in favor of business interests over the last several years.

A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was "ready to bend the law in favor of the environment and against the corporations."

Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.

According to Rosen, this change reflects an "elite consensus," but not necessarily the views of the nation's populace. This is an interesting argument for the author of a book on the Supreme Court called The Most Democratic Branch. It is also a bit curious to suggest that the Court is out of touch with the American public because it lacks Justices willing to "bend the law" in favor of interest groups that were unable to prevail through the democratic process.

Rosen's article has prompted substantial comment, including interesting posts by Jack Balkin and Larry Ribstein.

Rosen's article is interesting, but is it really all that accurate or insightful? Before answering that question, read Eric Posner's deconstruction of the Rosen's piece at Slate's new legal blog Convictions. After surveying the evidence Rosen marshals to make his case, Posner concludes:

the Supreme Court is not increasingly pro-business, but maybe it is increasingly pro-market, finally catching up to a change in the public mood that began in the Carter administration. To preserve the idea that its jurisprudence is "biased" in favor of business, rather than just sensible or reasonable or within the range of colorable legal argument or for that matter a long overdue reaction to its previous anti-business "bias," Rosen argues that maybe there are people out there who really are populist; he seems to think that the Supreme Court and elite, bipartisan opinion that (he acknowledges) it reflects are "biased" in favor of business because this populist sentiment no longer plays a role in its opinions. "Unbiased," in this view, is populist. But Rosen does not show that populism is on the rise; the fates of the two most populist presidential candidates, Huckabee and Edwards, suggest otherwise. Even if it were, it would be puzzling to argue that the Supreme Court should hold its finger to the wind and start ruling against businesses--indeed, should have started years ago, when this "pro-business" trend Rosen decries began--and if it doesn't, that must be because of "bias." The article boils down to the claim that the Supreme Court is biased in favor of business (that is, is excessivly pro-market) because it failed to anticipate, and today shows no inclination to heed, marginal populist sentiment that has made no inroad on electoral politics.

Is the Supreme Court Pro-Business, Pro-Market, or Neither?

In his much-discussed New York Times Magazine article, Jeffrey Rosen claims that the Supreme Court has become "pro-business." Eric Posner has already dissected much of the very weak evidence on which Rosen's thesis is based. I would add that Rosen's thesis is undermined by his conflation of being "pro-business" with being pro-free market, and by the Court's reluctance to provide even minimal protection for constitutional property rights and economic liberties.

I. Pro-Market vs. Pro-Business.

Rosen, like all too many other analysts conflates being "pro-business" with being pro-free market. In reality, however, business interests often favor government intervention. For example, they are happy to support regulations that hobble their competitors, provide them with subsidies, protect them from foreign competition, and so on. Politically influential corporations such as General Motors also benefit when the government condemns property that they covet and transfers it to them. As I explained in this post, libertarian and conservative public interest law firms found themselves unable to pursue a pro-market litigation strategy until they reduced their dependence on corporate support - in part precisely because business interests often support government intervention. Thus, even if Rosen is correct in claiming that the justices reflect "an emerging spirit of agreement among liberal and conservative elites about the value of free markets," that would not necessarily be a "pro-business" agenda. It benefits some businesses, but also harms the interests of others.

In reality, however, there isn't much evidence of a pro-market tilt on the Court either. Much, of course, depends on the baseline you apply. If you believe that property rights and economic liberties deserve virtually no judicial protection at all, than even the modest degree of protection they receive from the current Court will seem like too much. That said, I think the evidence suggests that the Court is very far from being pro-market. Constitutional property rights remain mired in a "second class" status relative to other individual rights - a status reaffirmed in several recent decisions. Judicial protection for other economic liberties is even weaker than that.

II. The Continuing Second Class Status of Property Rights.

In the area of property rights, the Court held in Kelo that the government can condemn virtually any property it sees fit and transfer it to another private party. Contrary to Rosen's claims that the Court is more pro-market than public opinion, in this case public opinion overwhelmingly (80% plus) favored greater protection for property rights than the Court. Although the Court majority agrees that private property can only be condemned for a "public use," it leaves the definition of "public use" almost entirely up to the discretion of the very same government authorities who wanted to condemn the property in the first place. With the possible exception of the Second Amendment, no other part of the Bill of Rights has been so completely negated by wholesale judicial deference to the government.

In recent years, the Court has also made it easier for government to severely restrict property owners rights without having its actions be declared a taking under the Fifth Amendment and thereby without having to pay the "just compensation" the Amendment requires. In the 2002 Tahoe-Sierra case (won by John Roberts as the lawyer for the government) the Court undermined much of the limited increases in protection against "regulatory takings" that it had extended to property owners in the 1980s and 90s (Richard Epstein provides a good discussion of the case's impact here). Most recently, in Wilkie v. Robbins, the Court held that, even in cases where there is a clear violation of constitutional property rights, the victims are not entitled to remedies that are routinely available for violations of other individual rights protected by the Bill of Rights.

III. The Third Class Status of Economic Liberties.

As limited as is the Court's solicitude for property rights, it extends even less protection to economic liberties. With the possible exception of Justice Thomas, all of the justices support the view that "economic" regulations require only minimal "rational basis" scrutiny that in practice leads to judicial endorsement of even the most blatant special interest manipulations that restrict individual liberty in order to benefit politically powerful interest groups. This despite growing evidence compiled by co-blogger David Bernstein and other scholars indicating that the Fourteenth Amendment was intended to provide far more than minimal protection for economic freedom. Certainly, the Court's unwillingness to provide even a modest degree of protection for economic liberties contrasts sharply with its solicitude for "noneconomic" unemurated rights, such as the right to sexual autonomy, abortion rights, and the right to marry (which is protected even in the case of death row inmates).

Rosen may be right in so far as today's Court gives property rights slightly more protection than did its predecessors between the late 1930s and the 1980s. That period, however, was an extreme anomaly in which judicial protection for property rights was far weaker than at any other time in American history. As James Ely shows in his excellent history, The Guardian of Every Other Right, judicial protection for property was much stronger during the Founding era and most of the 19th and early 20th century. And, though property rights gained some modest ground in the 1980s and 90s, Supreme Court protection for other economic freedoms hasn't advanced beyond its post-New Deal nadir.

Why Judicial Recognition of a Constitutional Right Doesn't Necessarily Mean that the Right Will Actually Be Protected:

Robert Levy, co-counsel for the gun owners in the Heller Second Amendment case, makes an excellent point in his op ed on the case today. Even if the Court recognizes the existence of an individual constitutional right to bear arms, that doesn't necessarily mean that the right will get any effective protection. The Court might recognize the existence of the right, but defer to the government in defining its scope, thereby effectively leaving the right to the tender mercies of the very officials whom constitutional rights are intended to protect against:

[C]an Washington's ban on all functional firearms coexist with a Second Amendment that secures an individual right? That question might hinge on how rigorously the court reviews the constitutionality of Second Amendment restrictions. If the court believes the Second Amendment meaningfully constrains government, Washington's ban is impermissible....

If the district's outright ban on all handguns, in all homes, at all times, for all purposes, is determined by the court to pass muster, it will mean that the Supreme Court intends to rubberstamp just about any regulation that a legislature can dream up - no matter whether the government has offered any justification whatsoever, much less a justification that would survive strict scrutiny. That would, in effect, excise the Second Amendment from the Constitution. A right that cannot be enforced is no right at all.

Recognition of a "right that cannot be enforced" is exactly what the Court has often done in the field of property rights. As I noted in my last post, the Court - especially in recent years - has often held that individuals are entitled to protection for property rights under the Fifth Amendment's Takings Clause and other constitutional provisions. However, they have heavily deferred to the government in defining the scope of those rights, often effectively negating them as meaningful protections for individuals targeted by the state. For example, the Court has allowed government nearly unlimited authority to define the scope of what constitutes a "public use" justify condemnation of private property under the Fifth Amendment. Entrusting the political branches of government with the authority to define the scope of a constitutional right is much like giving wolves the power to determine how much access they will have to the chicken coop. The chickens - especially those who lack political influence over the wolfpack - are unlikely to last very long.

Unlike some of my co-conspirators I don't have the expertise to opine on the question of how far a constitutional right to bear arms should extend. However, experience in other areas of constitutional law suggests that any victory for individual rights will be a hollow one if the Court defers to the government in determining how broad the right should be.

There is perhaps, some symbolic value in having the Court recognize the existence of a right, even if it doesn't give the right any real protection. But that symbolic value must be weighed against the danger that the public will assume that the judiciary is actually enforcing the right even when it isn't. Given the rational ignorance of most voters, there is a real danger that the public will assume that a judicial decision recognizing the existence of a right without giving it any real protection has "solved" the problem of government overreaching in this area.

CONFLICT OF INTEREST WATCH: I suppose I should mention that I am an unpaid adjunct scholar at the Cato Institute, where Levy is a senior fellow, and that he has made generous financial contributions to George Mason Law School (my employer and his alma mater). I don't think any of this actually affects my evaluation of his arguments. But I note it here for the benefit of the blogging ethics mavens out there.

Related Posts (on one page):

  1. Watch Out for Those Sources:
  2. Why Judicial Recognition of a Constitutional Right Doesn't Necessarily Mean that the Right Will Actually Be Protected:
  3. Is the Supreme Court Pro-Business, Pro-Market, or Neither?
  4. Is the Business of the Court Business?
Watch Out for Those Sources:

Yesterday Ilya blogged about Jeff Rosen's New York Times Magazine article on the Supreme Court and business, and also linked to Eric Posner's critique. Here, I wanted to note just one factual item, small by itself but illustrative of a broader problem:

[T]he progressive antagonists of big business are understandably feeling beleaguered and outgunned. "The fight before the court is generally not an even one," said David Vladeck, who once worked for the Public Citizen Litigation Group and now teaches law at Georgetown. "There's us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth." ...
Now Rosen and Vladeck are generally careful scholars, but I'm pretty sure that Vladeck's quantitative analysis is not accurate. I searched for Public Citizen's business law cases in the Supreme Court since 2000, and came up with five (four if you omit the case against the Department of Transportation, though that strikes me as focused on a business-related matter). Here's the tally of the amicus briefs in each:
  1. Warner-Lambert v. Kent (forthcoming 2008)
    On Public Citizen's side: 5 — AARP; National Conf. of State Legis. et al.; Public Justice, P.C.; American Ass'n for Justice; Kansas et al.;
    On business side: 6 — Chamber of Commerce; Generic Pharmaceutical Ass'n; U.S.; Washington Legal Found.; Product Liability Advisory Council; Pharmaceutical Research & Mfrs. of Am.
  2. Riegel v. Medtronic (2008)
    On Public Citizen's side: 6 — Sen. Kennedy & Rep. Waxman; AARP et al.; Consumers Union; Many States; Public Health Advocacy Inst. et al.; American Ass'n for Justice et al.
    On the business's side: 6 — Chamber of Commerce; Advanced Medical Tech. Ass'n et al.; Product Liability Advisory Council; Washington Legal Foundation; Croplife America et al.; U.S.
  3. Safeco Ins. Co. v. Burr (2007)
    On Public Citizen's side: 3 — Many States; Nat'l Consumer Law Center et al.; Many Insurance Commissioners.
    On business side: 12 — Mortgage Ins. Cos. et al.; Farmers Ins. Co. et al.; Ford Motor Co.; U.S.; Nat'l Ass'n of Mutual Ins. Cos.; Property Casualty Ins. Ass'n; American Ins. Ass'n; Financial Servs. Roundtable et al.; Freedomworks Found.; Consumer Data Industry Ass'n; Washington Legal Found.; Trans Union.
  4. Koons Buick Pontiac GMC v. Nigh (2004)
    On Public Citizen's side: 2 — Nat'l Ass'n of Consumer Advocates et al.; Commercial Law League.
    On business side: 3 — American Bankers Ass'n; Michigan Bankers Ass'n; Virginia Automobile Dealers' Ass'n.
  5. Department of Transportation v. Public Citizen (2004)
    On Public Citizen's side: 5 — American Public Health Ass'n et al.; South Cost Air Quality Management Dist.; Many States; Defenders of Wildlife et al.; Eagle Forum;
    On Department's side, which is pro-business: 0.

So, unless I'm mistaken, one case — Safeco — fits Vladeck's description, and the remainder do not. Maybe I omitted some case, and maybe I should have omitted Department of Transportation. But unless the SCT-BRIEF database in Westlaw is wildly and systematically inaccurate, the numbers I found (even if they need to be amended in some measure) just don't bear out Vladeck's characterization.

Now Vladeck might have been recalling cases from over a decade ago, and assuming that the pattern continued as before (his assertion, recall, is about what the fight is, not what it was). Or he might have felt outnumbered because of the higher quality of the pro-business briefs (a matter I didn't investigate, but he may well be right about it) and therefore the difference might have lodged in his head as being one of quantity rather than just quality. Or he might have focused more on hostile briefs than friendly briefs at the time, and thus underestimated the number of friendly briefs in retrospect. Or perhaps he remembered right, and Rosen misunderstood some important qualifiers Vladeck mentioned, and thus quoted Vladeck out of context.

I'm sure both Rosen and Vladeck were sincerely trying to get this right. Nonetheless, unless I'm missing something big, the quote that Rosen gives — and that Rosen seems to be conveying as a true statement — is mistaken. (Rosen does start by saying this is what "the progressive antagonists of big business are understandably feeling," but in context it seems clear that he's reporting their statement of the facts as actual fact, and not just as their incorrect view.)

So the bottom line: Even experienced, thoughtful, scholarly sources can get the facts pretty badly wrong. When the facts are available to you (and here this is just a matter of a few Westlaw queries), it's better to check those facts yourself.

UPDATE: Some readers suggested that I misread Vladeck as speaking about Public Citizen lawsuits specifically, and that he was instead using "us" to mean "progressive antagonists of big business" and not "Public Citizen." This is quite possible, since he's no longer officially affiliated with Public Citizen. I read "us" to cover the group with which Vladeck had long been involved, and with which he presumably still maintains personal and emotional ties, but I might well have been mistaken.

Still, the Public Citizen cases I cited strike me as a reasonable stand-in for cases involving "progressive antagonists of big business"; and they suggest that such progressives do get lots of amicus briefs in their cases against big business, contrary to Vladeck's assertion. I also saw the same pattern when I went through 2007 and 2008 cases that seem to fit the progressive-vs.-big-business mold (setting aside employment law cases, which to my knowledge tend to involve a different sort of litigation dynamic; see, e.g., Fed Ex v. Holowecki (2008), 2 briefs for the employee and 2 for the employer):

  1. Watson v. Philip Morris (2007) had 4 for business and 5 on the consumer side (counting on business's side two briefs that were ostensibly for neither party, but that focused on a procedural issue in a way that I imagine would usually benefit business).
  2. Bell Atlantic v. Twombly (2007) had 8 for business and 2 for the consumers.
  3. Environmental Defense v. Duke Energy (2007) had 11 for business and 9 for the environmental group.
  4. Philip Morris v. Williams (2007) had 12 for business and 12 for the consumers.

So the bottom line, it seems to me, is that whether one focuses on Public Citizen's cases or includes other recent "progressive antagonists of big business" cases, one does not see the general pattern that Vladeck describes. A few cases do fit that mold, of course (Bell Atlantic and Safeco), but not the bulk of the cases I analyzed. If someone has more comprehensive data, please let me know — but so far Vladeck's assertion seems to be mistaken.

FURTHER UPDATE: California Punitive Damages (subtitled, "An Exemplary Blog," for a little bit of tort law humor) points to the now-pending Exxon Valdez punitive damages case, which generated 7 briefs for the business side and 16 briefs for the other side. (And, yes, I checked the numbers myself.)