Supreme Court Justices and ‘Balls and Strikes’
Kevin Drum subjects Chief Justice John Roberts’ claims during his confirmation hearings that he would merely “call balls and strikes” to some testing.
But as fond as conservatives are of this kind of imagery, it’s mostly a myth. Recently the Constitutional Accountability Center took a look at Supreme Court rulings during the Roberts era, but instead of looking at hot button social issues they looked at the kinds of rulings that, although they get less attention, actually take up the bulk of the court’s time: those involving business and corporate law. The results were pretty startling.
A good guidepost to these rulings is the position taken by the United States Chamber of Commerce, which bills itself as the “voice of business.” Roberts’s record? In the past five years he’s sided with the Chamber 70% of the time. In close cases he’s sided with the Chamber a stunning 90% of the time. As an umpire, it turns out that if you’re filing a case against the business community Roberts has declared a strike zone only a few inches wide.
And Roberts isn’t alone. Samuel Alito and Antonin Scalia also sided with the Chamber over 70% of the time. (Alito sided with the Chamber a stunning 100% of the time in close cases.) Clarence Thomas took their side 68% of the time. And “centrist” Anthony Kennedy? He clocked in around 66%.
The kinds of regulatory issues involved in these cases are, in the long run, more important than all but the most explosive culture war cases. They include things like Citizens United, which allowed corporations to spend unlimited sums in political campaigns; Ledbetter v. Goodyear, which effectively eliminated the right to sue for race or gender pay discrimination; and Exxon v. Baker, which slashed the damage award in the Exxon Valdez oil spill case by 80%. And those are only the big ones. You can add in hundreds of other, smaller cases that have slowly but steadily chipped away at the right to hold corporations accountable over the past three decades.
And what about liberals on the court? Well, Souter and Breyer sided with the Chamber nearly half the time, and even Stevens and Ginsburg favored business interests more than a third of the time. The lesson here is that, contrary to what conservatives want everyone to think, they don’t just “call balls and strikes” or “rely on the plain meaning of the constitution.” Ideology matters. In fact, when it comes to business issues, conservative judges make far more fervent ideologues than liberals. Caveat emptor.
Now, as it happens, I generally think Kevin’s right. Despite the pretense otherwise, the Supreme Court is a political institution and ideology and partisanship matter a great deal. I doubt that’s there’s much difference in that regard between left-leaning and right-leaning Justices, especially after controlling for intensity, but that’s impossible to test systematically.
But with respect to conformity with Chamber of Commerce preferences, it’s quite possible that an explanation more favorable to the Chief Justice is available: calling “balls and strikes” according to a strict interpretation of the rule book (whether the Constitution or the governing statutes) may simply favor the Chamber.
Certainly, a Strict Constructionist or Plain Meaning view of the Commerce Clause makes it more likely that a Justice will strike down regulation of private enterprise. Conversely, the more liberal members of the Court — Stevens and Ginsburg — would be expected to lean over backwards to side with the Little Guy but, being honest to their own view of the law, nonetheless compelled to rule with the Chamber with some frequency because that’s where the law leads. And this would likely manifest itself especially in close cases.