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Under Roberts, high court is becoming business-friendly

The side backed by Chamber won 13 of 16 past cases

By Adam Liptak
New York Times / December 19, 2010

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WASHINGTON — Almost 40 years ago, a Virginia lawyer named Lewis F. Powell Jr. warned that the nation’s free enterprise system was under attack. He urged the US Chamber of Commerce to assemble “a highly competent staff of lawyers’’ and retain outside counsel “of national standing and reputation’’ to appear before the Supreme Court and advance the interests of American business.

“The judiciary may be the most important instrument for social, economic and political change,’’ he wrote.

Powell, who joined the Supreme Court a year later in 1972 and died in 1998, got his wish — and never more so than with the court led by Chief Justice John G. Roberts Jr.

The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber’s side.

One of the them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech’’ by lifting restrictions on campaign spending.

The chamber’s success rate is but one indication of the Roberts court’s leanings on business issues. A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests.

The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953.

Those differences are statistically significant, the study found. It was prepared by Lee Epstein, a political scientist at Northwestern’s law school; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, who serves on the federal appeals court in Chicago and teaches law at the University of Chicago.

The Roberts court’s engagement with business issues has risen along with the emergence of lawyers specializing in Supreme Court advocacy, many of them veterans of the US solicitor general’s office, which represents the federal government in the court.

These specialists have been extraordinarily successful, both in persuading the court to hear business cases and to rule in favor of their clients. The Supreme Court’s business docket has stayed active in the current term, which began in October. In one week this month, the court heard arguments in a case brought by the chamber challenging an Arizona law that imposes penalties on companies that hire illegal workers. It also agreed to hear two cases that could reshape class-action and environmental law.