Rightward shift of John Roberts Court documented

December 20, 2010 | By | 7 Replies More

This from Raw Story:

A study has found that the Supreme Court under Chief Justice John Roberts has undergone a fundamental shift in its outlook, ruling in favor of businesses much more often than previous courts.

According to the Northwestern University study, commissioned for the New York Times, the Roberts court has sided with business interests in 61 percent of relevant cases, compared to 46 percent in the last five years of Chief Justice William Rehnquist, who passed away in 2005.


Category: Court Decisions

About the Author ()

Erich Vieth is an attorney focusing on consumer law litigation and appellate practice. He is also a working musician and a writer, having founded Dangerous Intersection in 2006. Erich lives in the Shaw Neighborhood of St. Louis, Missouri, where he lives half-time with his two extraordinary daughters.

Comments (7)

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  1. Brian says:

    That's ridiculous. There is no way to draw such conclusions from such a survey, the issues are too complex and interwoven for anything other than expert opinion. The court *chooses* its cases from a large volume of requests. Apparently the news story didn't bother to report the raw numbers involved, nor what interests are advanced in non-corporate body of cases (a great many cases would not be relevant to this study). No two cases are alike. Furthermore, what happens to the plaintiffs and defendants are the least important aspects of any case. Cases resolve general principle of law that often apply to all types of parties in subsequent situations. Cases the chamber of commerce chooses to spend resources on are not randomly selected. Furthermore in these cases some answers may actually be objectively better than others. Most cases present multiple questions in which points are acknowledged for both sides. Finally, which side is ruled and "wins" for does not necessarily match the *extent* to which it wins.

    Such a study is basically worthless for finding things about the court. Much more useful would be a study of experts' opinions. Of course, the study may get the right answer just as flipping a coin might, but it's a poor method.

  2. Brian,

    Not that you don't have a point, but it would seem to be fiddling over details in the face of clear evidence. If nothing else, Citizens United is a stunning piece of pro Business absurdity that demonstrates a clear shift in tenor on the court.

  3. Brian says:

    In other words, you defend this study because it reached the same result as sophisticatedly interpreting evidence i.e. a written opinion? Let's go through this step by step. Remember, the prior court and this one will be going through each of these, and the claim is that we have a metric for which different results strongly indicate the court has a different operating ideology:

    Step 1 (not really but I'm not going to go all the way back to the big bang): Disputes arise in the real world. The percentage of them that get litigated is heavily dependent on the economy and other factors, different between the periods in question.

    Step 2: These disputes get decided on each of their points up until the Supreme Court is the court of final appeal.

    Step 3a: Cases that the court does not take remain decided as they were by the lower court. The extent to which this occurs is outside the scope of the study. This category contains the vast majority of all relevant cases. It's the unaccounted for "dark matter" of this study.

    Step 3b: A certain quantity of cases is taken, which for some reason the study didn't examine. In other words, what is being examined is only propensity to rule when already looking at an economic case, and the importance of economics in the Justices' world-view is being entirely ignored. They apparently don't think it's relevant if the Roberts court fills its docket with non-economic cases and issues a smaller number of "conservative" decisions than the Rehnquist court.

    Step 4a: It is decided some cases are "economic" and other "non-economic".

    Step 4b: It is decided some rulings are "liberal" and some are "conservative". How to label cases and rulings like Kelo I have no idea. Likewise, how ought we label decisions in which one side has a ruling in its favor, though to less of an extent than it did in the lower appellate court? How ought we label decisions in which one party wins the case in a narrow holding that is probably actually a blow for their side? What if we're not sure what the long term effects will be? I'm thinking of Daubert. How ought we label rulings where it is plausible for future claimants to be either corporations or individuals, particularly if the one before the court is not representative of the more common case?

    Step 5: Admitting that designating cases as wins and losses is more or less arbitrary, we don't even pretend to have a metric by which we can judge the extent of wins and losses to compare courts. We're looking at Team Rehnquist's 46% winning percentage over the last few seasons and Team Roberts' 61% winning percentage this season and assuming team Roberts scores more goals per game.

    Step 6: Sometimes the law is just the law. Not everyone went to the Creationist School of Interpreting All Evidence for Your Favored Conclusions.

    We're basically guessing that if Judge Rehnquist votes for the champion Iron Chef 46% of the time in season 1 and Judge Roberts votes for the champion Iron Chef 61% of the time in season 2, Judge Roberts likes the champion Iron Chef's food more than Rehnquist does, even though there were different ingredients, challengers, etc. Even that analogy is far too generous, since in Iron Chef it is clear for whom they side, etc.

    I tried to think of an appropriate Rube Goldberg analogy and failed. It's somewhat like the blind man eaten by the elephant saying what the elephant's nature is.

    Blind eaten guy says :"Hrrmrmmmfff!!!!!!"

    Blind guy holding the elephant's tail says: "Well other blind guys, how should we interpret that data?"

    Blind guy touching the trunk says: "Let's just figure this shit out and say that guy agrees."

    Blind guy touching the ear says: "OK."

    This study was useless and unnecessary. Just read the opinions, it's not that hard.

  4. Tim Hogan says:


    In the Citizen's United case, the majority adopted as its final position one which the corporadoes had already expressly abandoned in their briefing.

    Normally, if you abandon an argument or point on appeal, the court is precluded from acting upon that point; except if the Court has a huge pro-corporation bias and the only way to change the opinion is by a constitutional amendment!


  5. Brian says:


    Why on earth did you address that to me? I am arguing that we draw more accurate conclusions by examining decisions than deeply flawed surveys. You are citing an examination of a opinion leading to a reasonable conclusion about the court. How that suggests the survey has value I don't know.

    P.S.: "Normally, if you abandon an argument or point on appeal, the court is precluded from acting upon that point," is true, and Kennedy+ ruled that this case had features that made it an exception. If not for the strength of Stevens' counterarguments, those arguments alone really would be enough to reasonably make it an exception.

  6. Tim Hogan says:

    I disagree. The decision was results oriented political chicanery on the part of the two chief corporadoes on the Court, Messrs. Justices Roberts and Alito.

  7. Brian says:

    "The decision was results oriented political chicanery on the part of the two chief corporadoes on the Court, Messrs. Justices Roberts and Alito."

    I didn't say it wasn't, so I'm not sure that you are disagreeing with what I said. I didn't say that the reasons *not* to take the unusual measure of acting upon a point conceded by the party in a lower court outweighed the reasons *to* do that. However, in a vacuum, simply looking at the reasons why it might be the best course of action for a court to rule on grounds already conceded by a party, there was more than enough present to do that.

    In other words, in a hypothetical case where the political outcome was one you favored, and all of the reasons cited by the court in Citizen's United that caused it to rule as it did were present and the ones cited in the dissent as reasons not to do it were absent, you would say that the court should go back to the grounds discussed in district court to make its ruling. Admit it. You would be right to do so.

    As part of living in a society governed by neutral laws and neutral legal principles, you should acknowledge the extent to which the Roberts court lives up to those principles and falls short of them. Pretending that the ruling was fabricated and arbitrary is untrue and casts doubt on whatever true criticisms you may have. One can even speculate that Roberts would have ruled (dissented, more likely) in favor of Citizens United regardless of the legal merits while acknowledging that he did find some that really do apply here.

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