I wrote a post some time ago entitled “Football is dead and so are civil jury trials in the federal courts.” That prompted my extremely bright antagonist, Vince, to refer me to a New York Times article entitled “Corporations Find a Friend in the Supreme Court.”
In that article, the following was written:
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.
I thought it might be fun if I actually read the law review piece rather than taking the paper’s summary at face value. I was not entirely surprised to find that the Times cheery-picked the findings.
So, I decided to test my (few) gentle readers. Figure 3, in yesterday’s post proposing a test of the analytical skills of the readers, comes from the Epstein, Landes and Posner law review article cited (rather breathlessly) by the NYT and relied upon by Vince. (Let me hasten to say that this post is not a criticism of Vince.)
I will report some (but not all) of Epstein, Landes and Posner’s findings that were not reported in the Times piece. I did my own “cherry-picking” to illustrate that care must be taken when generalizing about statistical data and the Supreme Court’s alleged pro-business stance. For example:
*The number of business cases the Supreme Court is taking has declined over time. “[T]he number of business cases in the Business Litigant Dataset averaged 36.6 per Term in the 1946 to 1952 Terms, compared to only 11 per Term since 2005; in the broader business dataset the decline is from an average of 46.1 to an average of 22.1.” Lee Epstein, William M. Landes, & Richard A. Posner, How Business Fares in the Supreme Court, 97 Minnesota Law Review 1431, 1436 (2013).
*Comparing the Warren Court to the Roberts Court, there is a definite trend toward business support but there are anomalies. Referring to figure 3 (my skills test figure), the authors write: “Both [methods, judicial votes or outcomes] indicate a large drop in support for business during the 1960s, the era of the Warren Court, and a large rise in the Roberts Court. [However,] [t]he plunge in the early 2000s is a puzzle.” Id. at 1448.
*While Alito and Roberts ranked 1 and 2 as being the most “pro-business,” Justice Jackson ranked third. This is a startling. “As FDR’s Attorney General, he prosecuted businesses vigorously, in sync with the New Deal’s general hostility to business interests.” Id. at 1451-1452.
*“Even more surprising is that Ginsburg jumps to 11 (above Scalia and just below Powell and Stewart) in [one data set].” Id. at 1452.
*Justices Kagan was not included in the rankings just discussed because the authors believed that she had cast too few votes. Justice Sotomayor was excluded from one data set that was used to compute the ranking just discussed because the authors believed she had cast too few votes. Id. at 1451.
*“Over the span covered by our study, business litigants have generally fared worse in the Supreme Court than their nonbusiness opponents, receiving only 40% of the Justices’ votes and winning only 38% of the cases.” Id. at 1470.
*“We find that decisions in favor of a business litigant over a non-business litigant are not uniformly conservative or the opposite decisions uniformly liberal; only 67.5% of the decisions (and 67.4% of the Justices’ votes) fit the pattern of business wins-conservative and business loses-liberal. And in subsets consisting for example of business cases involving civil liberties (such as a suit against a business for libel), the percentage is substantially lower.” Id.
*There is a trend toward appointing “pro-business” Justices whether the President is a Republican or Democrat. “Over time, Justices appointed by Democratic Presidents—not only those appointed by Republican Presidents—have become more favorable to business, consistent with the general growth in the public’s favorable attitude toward business.” Id. at 1471.
*The Court tends to follow the “Tenth Justice” in business cases. “We used regression analysis to isolate additional factors that are correlated with (and might influence) Justices’ votes in business cases. . . . [T]he Solicitor General’s position in a business case is highly correlated with the Justices’ votes in the case . . . .”
What I will say is that the commentators to my earlier post have far better analytical skills than the New York Times. (“Duh,” you say!) It is all well and good to use punchy headlines like “Corporations Find a Friend in the Supreme Court” as the NYT did in order to further your ideological perspective or to sell newspapers. It is an entirely different thing to seriously examine the data in an intellectually honest fashion. That is hard work and it frequently leaves you with more questions than answers.