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No, the Supreme Court is not 'pro-business', contrary to Dahlia Lithwick's claim

Slate’s Dahlia Lithwick has falsely claimed that in the Supreme Court, “big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.”

That false claim is utterly inconsistent with reality. Over the last dozen years, the death penalty has been dramatically cut back in cases like Roper v. Simmons (2005), as the Supreme Court has invalidated the death penalty when imposed on the “retarded” (even the mildly retarded) or juveniles (even 16 to 18 year-olds), or when imposed by judges rather than juries (as state laws long provided).

The Supreme Court overturned thousands of sentences given to criminal defendants in cases like U.S. v. Booker (2005) and Blakely v. Washington, regardless of defendants’ guilt, based merely on the fact that judges, rather than juries, had made findings related to those sentences. The supposedly “right-wing” justices Roberts, Scalia, and Thomas joined in these decisions.

Environmentalists won many cases, including one of the most economically-significant decisions ever — Massachusetts v. EPA (2007) — which potentially opened the door to EPA regulation of virtually every human activity, on the grounds that virtually all activity (from industrial production to farming to cars) emits carbon dioxide. That decision also created a special rule of standing to allow state attorneys general to bring lawsuits that would otherwise be thrown out as meritless for lack of standing.

The Supreme Court recently allowed businesses to be sued even for products the FDA deems to be safe and effective, in Wyeth v. Levine (2009), in a ruling that legal commentator Ted Frank called the most anti-business decision in 43 years.

The Supreme Court has repeatedly broadened businesses’ liability for discrimination against female and elderly workers. It continuously expanded the definition of sexual harassment, overturning earlier limits on vicarious liability (in Faragher v. Boca Raton (1998)), allowing institutions to be sued based on the acts of non-employees (in Davis v. Monroe County (1999)), and rejecting longstanding lower-court limits on lawsuits where there is no economic or psychological harm (in Harris v. Forklift Systems (1993)). It also allowed businesses to be sued for discrimination against elderly workers even absent any showing of discriminatory intent or differential treatment (in Smith v. Jackson (2005)). All of these decisions overturned lower court rulings against plaintiffs. The Supreme Court often rules against business in discrimination cases.

In short, Dahlia Lithwick’s perception of the Supreme Court bears no relation to reality. But it is shared by court reporters at publications like the New York Times, the Washington Post, and the Los Angeles Times, who promote a similar caricature of the Supreme Court.

As a result of such reporters ceaselessly peddling this perspective to their readers, it is also the perception of some of the newspaper-reading public, especially in the so-called Blue States.

Factually inaccurate and dishonest reporting on recent Supreme Court decisions was a staple of the 2008 election.

A classic example is the Supreme Court’s recent Ledbetter decision, which many reporters wrongly claimed required discrimination plaintiffs to sue within a rigid 180-day deadline. In fact, most pay discrimination cases could legally be brought for at least 3 years after discrimination allegedly occurs, under laws unaffected by the Supreme Court’s decision (like the Equal Pay Act), and the 180-day deadline, even when applicable, had lots of common-sense exceptions to keep employers from escaping justice (such as tolling to protect hoodwinked employees).

Lilly Ledbetter waited for over five years after learning of pay disparities between her and her male co-workers before she filed an EEOC complaint, as many lawyers, like former EEOC lawyer David Copus and legal commentator Stuart Taylor, have noted. So it's not surprising that the Supreme Court found she waited too long to sue.

Obama repeatedly made false claims about the Ledbetter decision in order to use it as a campaign issue, and the press not only let him get away with it, but sometimes made false claims of its own about the case.

I also discuss and debunk the false meme that the Supreme Court is pro-business in my recent law review article, Free Enterprise Fund v. PCAOB: Narrow Separation-of-Powers Ruling Illustrates That the Supreme Court Is Not ‘Pro-Business,’ 2009–2010 Cato Supreme Court Review 269, 283–84 (2010).


  • Anonymous 4 years ago

    No wonder the business climate stinks.

  • Anonymous 4 years ago

    Who cares about business? What is this, a trade journal?

  • Anonymous 4 years ago

    The criminal stuff matters more.

  • Anonymous 4 years ago

    You are so full of it, those (CEO) are allow to spend company money on their candidate, not the candidate that the workers and stockholders might vote for. This is so wrong, it is stealing their money. You lie so much on the examiner, your title should state 'GOP examiner'. The Supreme Court recent pass this !!!

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