Is the Supreme Court Tilting Right?

Tuesday, December 21, 2010
Epstein Portrait
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illustrated by Barbara Kelley

Conspiratorial theories about Supreme Court justices are easy to advance, but far more difficult to refute. This lamentable tendency is evident in a front-page story by the New York Times’s Adam Liptak, which carries the seductive title, "Justices Offer Receptive Ear to Business Interests."


Liptak ominously reports that the Supreme Court has agreed to hear an appeal from Wal-Mart, which is resisting a huge class action in an employment discrimination suit, and a second appeal that deals with carbon dioxide emissions from power plants, both of which are matters of great importance. He also mentions the recent Supreme Court decision that is everyone’s favorite whipping boy, Citizens United v Federal Election Commission, which struck down some limitations on campaign expenditures.

Reading Liptak’s article, it is not hard to infer that the Supreme Court has tilted in a lamentably partisan way.

The spark for Liptak’s column is an impressive and dispassionate piece of empirical scholarship by legal scholars Lee Epstein, William Landes, and Richard A. Posner entitled, "Is the Roberts Court Pro-Business?" The study reports two key conclusions: first, that since 1953, business decisions have come to represent an ever-increasing fraction of the cases coming before the Supreme Court and, second, that under the Roberts Court, more of these cases have been decided in a pro-business direction than in previous years, including the last five years of Chief Justice William Rehnquist’s Supreme Court.

The critique that the Court is tilting right fails to place Supreme Court decisions in their larger, historical context.

The numbers here are not trivial. Between 1953 and 1969—when Earl Warren was Chief Justice—the Supreme Court acted in a pro-business fashion in only 29 percent of business cases. That number leapt up to 47 percent when Warren Burger was Chief Justice between 1969 and 1985. And between 1986 and 2004, during the Rehnquist Supreme Court, it rose slightly to 51 percent.

Against this backdrop, it is notable that now the number of pro-business decisions by the Supreme Court, with John Roberts as Chief Justice, is 61 percent. As the conservative justices have moved in a smartly pro-business direction, the liberal justices have shifted somewhat less dramatically to the anti-business side of the line. The numbers thus confirm what everyone already knows: the political divide between the two wings of the Court has grown larger.

But the key question is: just what do these numbers show? As the title to the Liptak story suggests, one interpretation is that the Court has moved sharply to the right. The back-story for Liptak is the evident influence of the U.S. Chamber of Commerce, whose extensive and well-organized litigation machine has reaped substantial successes over the years. Its litigation head, Robin S. Conrad, told Liptak that "[t]here has been a return on investment, not to sound too crass."

Well, it is a bit too crass, and overstated as well. As liberal groups denounce this shift which conservative groups defend, neither side seems to understand how best to interpret the results of a serious academic study that does not have politics embedded in its DNA.

Viewed systematically, there are three major reasons why the study’s supposed trend—along with Liptak’s narrative of the Court—is both overstated and misunderstood.

First, the critique that the Court is tilting right never sets the Supreme Court decisions in their larger, historical context. Anyone who takes a look at the pattern of litigation over the past 57 years has to be impressed with the complete transformation of the Supreme Court docket. During this period of time, Congress passed statute after statute expanding the power of government over business, both by direct regulation and by private lawsuits that have been authorized, expressly or by implication, under a raft of old and new regulatory statutes.

As late as 1965, there was no employment discrimination litigation, no class actions for damage suits, no environmental law, and no campaign finance limitations. What was in place during that era was a set of goofy Supreme Court antitrust decisions—especially in the area of mergers—that have been widely and thoroughly discredited by liberal and conservative antitrust scholars alike. Put otherwise, that only 29 percent of business cases were decided in a pro-business manner should be treated as evidence that the Warren Court did not do a good job in this vital area.

Today, the situation is quite different. To treat the Supreme Court as conservative requires that one look at its recent decisions in utter isolation from the powerful underlying trends in the statutory and common law. No matter how the Court decides the cases on its docket today, the scope of government power remains far greater than it was in the Warren, or even the Rehnquist Court. To be pro-business today does not carry the same meaning that it did in earlier periods, when the scope of regulation was in general so much narrower.

Let me give a concrete example. One area that has witnessed a relentless expansion of government power is drug regulation under the Food and Drug Administration ("FDA"). One of the FDA’s most notable power grabs came in the 1990s when the organization, under David Kessler, tried to classify tobacco as a drug, subject to FDA regulation, without bothering to ask what particular disease tobacco was intended to treat. The Supreme Court, writing through Justice Sandra Day O’Connor in 2000, rejected that improbable interpretation in the excellent decision for FDA v Brown & Williamson, to which Justice Stephen Breyer wrote a limp and over-literal dissent.

Nevertheless, the scope of federal regulation increased shortly thereafter with the passage of the grandly styled "Family Smoking Prevention and Tobacco Control Act" of 2009, which increased FDA oversight far beyond anything that the Kessler FDA had dared to claim. To be sure, this statute, too, may well be the subject of some future Supreme Court litigation in which the FDA’s short-term ambition is foiled. But make no mistake about it: the size of overall government involvement in business is on the increase. The Chamber of Commerce is fighting a rearguard action against the increased regulation of the last 20 years, just as it will against the expansion of regulation under both ObamaCare and Dodd-Frank.

To be pro-business today does not carry the same meaning it did in earlier periods. The scope of government power and regulation is far greater now than it once was.

The second, serious limitation of any counting exercise is that it fails to weigh the importance of particular cases that go against the trend. In this regard, one of the most significant decisions of the Roberts Court came in 2009 with Wyeth v Levine, which was a major business defeat. The Court’s decision abruptly ended the efforts of the Bush administration to block private tort actions attacking the warnings which appear on drug labels and that are issued and approved by the FDA.

The other major business defeat of the Roberts Court was the 2007 case, Massachusetts v EPA, where a liberal majority of the Court held that carbon dioxide could be regulated as a pollutant under the Clean Air Act of 1970 (and its various amendments). That decision pushed a statutory definition beyond its natural contours and unleashed a huge level of activity inside the EPA, which has sparked a second generation of conflicts about the scope of the EPA’s authority and the soundness of its policy execution. The Chamber may win on some of these battles, but make no mistake: the size of government is still bigger than it was before either Wyeth or Massachusetts v EPA.

The third major limitation of empirical analysis is that it makes no judgments about the decisions that it finds so easy to catalogue. On that point, small government libertarians have little doubt that, given the current state of play, the last thing that this country needs is additional federal regulation and private lawsuits. Yet, these studies are necessarily agnostic about the soundness of the Supreme Court’s decisions, either in terms of their fidelity to the constitutional or statutory text, or their soundness as a matter of policy. To make these determinations, nothing short of more boots on the ground will do. It is useful to count decisions, but it is also necessary to read them, which is always laborious and often painful.

Liptak’s pro- and anti-business narrative of the Court is beside the point. Interpreting the soundness of judicial decisions requires answering only two questions: are the decisions involved faithful to the texts that they have construed, and are the decisions defensible in terms of generating a positive impact on the overall social welfare? The strongest criticism of liberal positions in most of these cases is that they fail either or both of these tests.

Indeed, the great unspoken tragedy of the modern legal scene is that the government has become so bloated that in virtually all cases, the correct working hypothesis is, and should be, that any further extension of government authority should be resisted on both of these grounds. That is the real story behind the clash of forces on the current Supreme Court, a story that Liptak simply missed.