Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Governments never learn. Only people learn.”     Milton Friedman

June 16, 2010

Supreme Court Opposes Nazis 90% Of Time — Kevin Drum Labels Them Ideologues

by Brad Warbiany

Kevin Drum, on the Supreme Court’s pro-business stance:

(original linked article from Constitutional Accountability Center)

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%.

Missing from either the original source or from Drum’s analysis is a critical aspect of analysis: whether or not the justices’ opinions were Constitutionally sound.

While cases taken up by the Supreme Court are not the frivolities that a lesser court might be burdened with, but neither is there any reason to assume that they will be decided on a 50/50 split. Deciding cases evenly is a far different matter than deciding them fairly. Since the Court chooses which cases it hears, we know the sample can not be expected to be representative of a 50/50 split.

Nor is it necessarily fair to categorically label these justices pro-business, in as much as their opinions may be consistent with a wider Constitutional law philosophy that these cases exposed. The Chamber of Commerce’s legal arm regularly offers briefs in cases of corporations against government, so a philisophical animus against overreaching government (Thomas, Scalia), for example, would likely cause a >50% finding in favor of the Chamber, while an expansive view of government power (Ginsberg, Stevens) would suggest a >50% finding in favor of the government — at least in cases dealing with the Chamber fighting state, federal, or local regulations it finds intrusive.

I would assume that Drum would expect justices to side in favor of free speech >50% of the time. Why would he think this to be different?


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