WASHINGTON — A study from a liberal interest group says the Supreme Court of Chief Justice John Roberts has a decidedly pro-business tilt, echoing the line Democrats are taking in support of the nomination of Elena Kagan to fill its latest vacancy.
The analysis from the Constitutional Accountability Center finds that the court's five conservative justices side with the U.S. Chamber of Commerce at least two-thirds of the time, while the four liberal justices all disagree with the position by the nation's largest business group more than half the time.
The Chamber of Commerce says the analysis is simplistic and notes that many business cases unite the court's conservatives and liberals.
But Doug Kendall, the center's president, says the study confirms what he and many Democrats have been saying, especially since the court voted 5-4 in January to take limits off independent corporate spending in political campaigns.
"The pro-corporate rulings of the activist Roberts court are already a very big story," Kendall says.
President Barack Obama stirred controversy when he criticized the court's campaign finance decision at his State of the Union speech in January, with six justices in attendance in the House chamber.
When Obama nominated Kagan, the current solicitor general, in May, he praised her for defending "the rights of shareholders and ordinary citizens against unscrupulous corporations."
Democratic senators and liberal interest groups have struck similar chords, and the theme is likely to recur at Kagan's hearing beginning in late June.
For its study, the center took a look at 53 cases decided since Justice Samuel Alito joined the court early in 2006 and in which the Chamber of Commerce played a role.
The group won 64 percent of those cases and 71 percent of closely divided cases – those with five-justice majorities, the report said.
Alito has the highest support for the Chamber of Commerce's position, 75 percent overall and 100 percent in the close cases. Justice Anthony Kennedy supported the group's position 67 percent of the time and the other three conservatives, chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, were between Alito and Kennedy.
Robin Conrad, who heads the Chamber of Commerce's active litigation division, said the study used "loaded, inflammatory language" that ignored some pertinent facts.
"The vast majority of our cases are decided by lopsided majorities that include what they call the left wing of the court," Conrad said.
She also noted that the study called the court's ruling cutting Exxon Corp.'s damages in the Exxon Valdez spill by 80 percent "ideologically divided." But Conrad said, "Last I read, Justice (David) Souter wrote the majority in that case." Souter, since retired, was generally part of the court's liberal bloc.
"This is a political season and people are being particularly political," she said.
The report also noted that the early evidence suggests that Souter's replacement, Justice Sonia Sotomayor, may be less inclined to support the business position than was Souter. In the seven cases in which she has participated so far, Sotomayor has voted against the Chamber of Commerce's position five times and the court was unanimous in her two pro-business votes, the report said.
The planned start of Kagan's confirmation hearing is June 28, also the last day the court is scheduled to issue opinions before breaking for the summer.
There is no fixed date by which the court must issue all its opinions. But to finish by June 28, the justices would have to produce a relative torrent of decisions in 24 cases in the span of 15 days beginning Monday, when the court next sits.
The remaining cases are generally not garden-variety disputes, but among the most important and contentious of the term.
- McDonald v. City of Chicago, a test of whether the Second Amendment right to bear arms, spelled out in a 2008 ruling that struck down a handgun ban in the federal enclave of Washington, also serves to limit state and city gun control measures.
- Skilling v. U.S., along with Black v. U.S. and Weyhrauch v. U.S., a challenge to the "honest services" fraud law that has become a favored tool of prosecutors in corporate and public corruption cases.
- Christian Legal Society v. Hastings, asking whether a campus group that excludes gay students can be denied official recognition by a public university.
- Holder v. Humanitarian Law Project, a free-speech challenge by humanitarian aid organizations to an anti-terror law that bars "material support" to designated terrorist groups.
- John Doe No. 1 v. Reed, a First Amendment dispute over whether the names of petition signers can be kept secret, in this case to preserve the anonymity of people who wanted to repeal a gay rights law in Washington state.
- City of Ontario v. Quon, a test of a public employee's privacy rights involving personal text messages sent on a government pager.
The final decision day is of keen interest to the justices, some of whom head abroad for teaching gigs and a bit of R&R.
Justice Stephen Breyer, who studied at Oxford 50 years ago and later married an Englishwoman, is scheduled to receive an honorary degree at Oxford in late June.
Alito will take part in a Penn State University law program in Strasbourg, France, in July, while Kennedy will return to Salzburg, Austria, for his 21st straight year of teaching in the University of the Pacific's summer program abroad.