US Supreme Court's Balls and Strikes Count

Jun 5, 2013

Last month I spoke about how mandatory, pre-dispute arbitration clauses in consumer and employment contracts can never be fair, because the parties do not have equal bargaining power, equal experience in arbitration, equal ability to understand contract language, particularly the ramifications of the rights being waived, and an equal ability to insist on clauses being included or excluded in the contract. 

I gave examples of how the U.S. Supreme Court has failed to uphold an individual's right, under the 7th Amendment, to have civil disputes decided by a jury, instead it has sided time and again with corporations in upholding mandatory pre-dispute arbitration provisions.  These included cases where state courts and U.S. Circuit courts have upheld consumers' rights, and the U.S. Supreme Court has sided with the corporation, leaving consumers with no recourse, and giving corporations an arbitration free pass –  no accountability, unless someone is willing to spend more money than they could ever hope to recover. 

The idea that the U.S. Supreme Court would side with corporate interests over individual's constitutional rights comes as no surprise to many of us who monitor Supreme Court decisions.  But, if you are intellectually honest, you have to always question whether your conclusions are based upon your biased perceptions, or whether they are indeed based on facts.

So, are there any facts to back up the conclusion of many that the U.S. Supreme Court is, in political parlance, “business friendly?”  Many of us perceive the court under Chief Justice Roberts, as allowing corporations to spend freely in elections, protecting corporations from class actions and human rights suits, and favoring arbitration over actions brought under the 7th Amendment as the way to resolve many disputes. For many, the perception is that these rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

A study published in April in The Minnesota Law Review, takes a comprehensive look at some 2,000 decisions from 1946 to 2011.  The study relied on a simple formula – it looked at cases with a business on one side and an individual, or group of individuals, on the other side. A vote for the business was counted as a pro-business vote.

The 36 justices who have served on the court the past 65 years were ranked by the proportion of their pro-business votes. Current Justices Roberts, Scalia, Thomas, Kennedy, and Alito were in the top 10, with Roberts and Alito the two justices most likely to vote in favor of business interests of all those 36 justices.

Part of the reason for this, the study concluded, is that the Roberts Court is hearing more cases where the business lost in the lower court, and reversing more. Unlike the Montana Supreme Court that hears every case where at least one of the parties requests an appeal, the U.S. Supreme Court gets to choose which appeals it hears, and it chooses the business cases it wants to hear. The Roberts Court is more likely to reverse a case when the lower court decision was anti-business. Along those lines, the Court is also more likely to affirm cases in which the lower court decision was pro-business.

The “business friendly” bent of the Roberts court is also found in looking at amicus, or friend-of-the-court, briefs filed in support of petitioners asking for Supreme Court review.   SCOTUS BLOG contributor Adam Chandler found that in the past three years, pro-business groups accounted for more than 75% of the top 16 groups filing amicus briefs.  The U.S. Chamber of Commerce was tops, and the most successful filer.  Parties asking the U.S. Supreme Court to review their cases get their wish 1% of the time.  Parties supported by a Chamber amicus brief asking for review get their wish 32% of the time.  That's right, businesses with Chamber amicus support are 32 times more likely to get their case heard by the U.S. Supreme Court.

Those of you that remember Chief Justice Roberts' Senate confirmation hearing in 2005 may also remember that several times he likened the role of a justice to that of a baseball umpire.  He closed with “And I will remember that it's my job to call balls and strikes and not to pitch or bat.”  Applying these recent factual compilations to a baseball analogy, it's easy to see why you would want to be on the U.S. Chamber team when Roberts is the umpire – you get strikes called in your favor 32% of the time, as opposed to the league average of 1%.

There is some hope with ending abusive mandatory arbitration provisions, and restoring Americans’ 7th Amendment rights.  U.S. Senator Al Franken and U.S. Representative Hank Johnson have introduced the Arbitration Fairness Act of 2013.  The Act would: eliminate forced arbitration in employment, consumer, civil rights, and anti-trust cases; ensure that the decision to arbitrate is truly voluntary; and, would restore fundamental rights created by state and federal constitutions and laws.

Links to the Act, and to the studies referenced above can be found in this commentary posted in the Commentary section of the homepage, and at our website –  Five minutes is a short time for these issues, please check them out fully for yourself, if you're so inclined.

This is Al Smith for the Montana Trial Lawyers Association.

Minnesota Law Review Study
NYT Article - Corporations Find a Friend in the Supreme Court
Review of Amicus Filings
Roberts Confirmation Statement
Arbitration Fairness Act of 2013 (AFA) [S.878 / H.R.1844]