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Justice Breyer Rejects Theory of "Pro-Business" Court

RightinNYC

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http://volokh.com/2010/10/07/justice-breyer-rejects-theory-of-pro-business-court/

Bloomberg reports:

Justice Stephen Breyer rejected the notion that the U.S. Supreme Court has a pro-business slant and said the court doesn’t rule in favor of companies any more frequently than it has historically.

“I looked back,” he said in a Bloomberg Television interview in which he discussed his new book. “I couldn’t find a tremendous difference in the percentage of cases. They’ve always done pretty well.”

This should not be surprising. As I’ve blogged several times over (see, e.g., here, here, and here), the “Roberts Court Is Pro-Business” hypothesis does not stand up well to scrutiny — at least not without some refinement. That is, the Court may have some tendencies that business likes — such as a reluctance to expand or discover private causes of action or support for non-judicial dispute resolution mechanisms (e.g. arbitration, etc. — but this is not the same as being “pro-business.” In some areas business concerns appear to be irrelevant, and there are plenty of other areas, including preemption, where the Court has been anything but a consistent friend of business.

Businesses (and other large entities) have historically done well at the SC because they act strategically and tend to only bring cases that they have confidence in winning. In comparison, individuals who are making habeas claims or criminal claims are much more likely to seek cert even in borderline or losing cases, for obvious reasons.
 
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Deuce

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Of course, percentage of cases doesn't really speak to the gravity of those cases. The ruling on political campaign spending might have massive repercussions down the line.
 

RightinNYC

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Of course, percentage of cases doesn't really speak to the gravity of those cases. The ruling on political campaign spending might have massive repercussions down the line.

The amount of money that companies donate directly to candidates is infinitesimal compared to the amount of money that they spend on lobbying. Moreover, Citizens United had little effect on anyone other than a few types of groups (Chamber of Commerce, unions, etc.), and even for those groups the effect was minimal.
 

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Not to mention that, I would much prefer companies spend their money directly on political ads, and marketing than on lobbying. The SCOTUS made the right call on this one, hands down!

Tim-
 
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