Wednesday, May 29, 2013

Corporations Find a Friend in the Supreme Court

Story originally appeared on the New York Times.

NOT long after 10 a.m. on March 27, a restless audience waited for the Supreme Court to hear arguments in the second of two historic cases involving same-sex marriage. First, however, Justice Antonin Scalia attended to another matter. He announced that the court was throwing out an antitrust class action that subscribers brought against Comcast, the nation’s largest cable company.

Almost no one in the courtroom paid attention, despite Justice Scalia’s characteristically animated delivery, and the next day’s news coverage was dominated by accounts of the arguments on same-sex marriage. That was no surprise: the Supreme Court’s business decisions are almost always overshadowed by cases on controversial social issues.

But the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.

In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

Whether the Roberts court is unusually friendly to business has been the subject of repeated discussion, much of it based on anecdotes and studies based on small slices of empirical evidence. The new study, by contrast, takes a careful and comprehensive look at some 2,000 decisions from 1946 to 2011.

Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.

The study was prepared by Lee Epstein, who teaches law and political science at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

In the Comcast case, subscribers seeking $875 million in damages charged that the company had swapped territory with other cable companies to gain market power and raise prices. But the legal issue before the court was technical. It concerned the sort of evidence needed to allow two million subscribers in the Philadelphia area to band together as a class.

Justice Scalia said the plaintiffs’ evidence was not enough to allow them to proceed as a class. They could still, he said, pursue their complaints individually. But the difficulty of mounting such suits over insignificant sums would not make them very attractive to most lawyers.

The decision, however, went far beyond the Comcast subscribers. By reaffirming Wal-Mart v. Dukes, a 2011 blockbuster case in which the court threw out a large employment sex discrimination class, the Comcast case limited class actions more broadly.

The question of whether plaintiffs have enough in common to sue as a class is different from whether they deserve to win. The first question is generally resolved early in the case. The second one may await trial.

But the Wal-Mart and Comcast decisions said the two questions often overlap and may call for an early answer. The decisions essentially required early scrutiny — by a judge, not a jury — of the ultimate legal question in high-stakes cases, sometimes before all the relevant evidence has been gathered. This delighted business groups, which have pushed to limit class actions.

“The court is telling lower courts across the country they really do have to fulfill their gate-keeping function and keep these meritless classes out of the courts,” said Kate Comerford Todd, a lawyer with the litigation unit of the United States Chamber of Commerce.

Justices deeply unhappy with a decision sometimes read their dissents from the bench. It happens perhaps three times a year. Justice Scalia, in remarks at George Washington University in February, said such oral dissents were a way to call attention to a grave misstep.

“I only do it in really significant cases,” he said, “where I think the court’s decision is going to have a really bad effect upon the law and upon society, a really, really big case.”

By that standard, the dissenters thought the Comcast decision was very bad indeed. It gave rise to two oral dissents, from the two senior members of the court’s liberal wing, Justices Ruth Bader Ginsburg and Stephen G. Breyer.

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