Still A Conservative Court

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It’s a new day for the Supreme Court. We are in uncharted territory with this current Supreme Court vacancy with no end in sight.  In some respect this has led to a liberal shift in the Court’s general demeanor – especially since this is the first time in decades that conservative Justices have not held a majority of seats on the Supreme Court.  With all of this change, however, there are indications that the Court’s conservative bastion still remains strong.

Since the majority of cases this Term were decided with an even number of liberal and conservative Justices, an understandable presumption may have been that this would lead to a higher proportion of liberal decisions than in years past.  There is some validity to this speculation. Looking at the Term as a whole and within a specific set of cases where the Roberts’ Court has historically ruled with a conservative bent, decisions this Term continue and build upon this Court’s past trends and are true to the Roberts Court legacy.

While the Roberts’ Court has had a majority of predominately conservative Justices for the years leading up to this Term, the Court has not consistently favored conservative decisions on the whole.  The figure below shows the Court’s year-by-year ideological voting patterns based on one commonly accepted coding method.

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On a yearly basis, the Roberts Court has actually fluctuated between voting primarily in the conservative direction and voting evenly across the ideological spectrum (or even somewhat liberally).  The majority of the Court’s rulings for the 2013-2015 Terms were actually in the liberal direction, yet 2015 had the lowest differential favoring the liberal vote of these three Terms.  When looking only at the ideological direction of signed opinion in cases that were orally argued the comparison shifts slightly.  Although there were large differences in the number of decisions favoring conservative outcomes in the 2005 and 2008 Terms, many of the other Terms had relatively even numbers of rulings across the ideological spectrum.  When looking at the chart for this subset of cases, in 2015 conservative decisions slightly outweigh liberal decisions 32 to 30.

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The Roberts Court is often viewed as pro-business – an opinion which is sustained with empirical evidence although the extent of which is still under debate.  Since rulings against business are often seen as ideologically liberal (and are coded as such under the Supreme Court Database coding) one might expect fewer conservative rulings in business cases with a more moderate Court.  On the other hand given the Court’s general ideological trajectory, the strength of this hypothesis is somewhat diminished.

The figure below looks at the percent of conservative rulings in business cases (those coded under the issue area of “economic activity” in the Supreme Court Database) across the Roberts Court years and shows a fairly consistent propensity towards conservative rulings (the reference line is at 50% of the business cases or a position of ideological neutrality).  The exception to this trend was the 2013 Term where the Court ruled in the liberal direction 11 times and the conservative direction 6 times within this case subset.

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Looking at the 2015 Term in particular, the Court not only ruled predominately conservatively in these cases, but did so by a slightly larger percentage than in 2014 (61.1 % of the time compared to 60% of the time).  The below figure shows that this 61.1% breaks down to 7 liberal decisions and 11 conservative decisions (when looking only at signed opinions in orally argued cases this percentage jumps to 69% in the conservative direction).

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But which cases were coded as falling in the realm of business or economic activity for this past Term and why were they coded ideologically one way or the other? The bullet points below look at the individual cases

  • OBB Personenverkehr AG v. Sachs (conservative: individual not successful against business): an individual is not awarded damages for injuries resulting from attempting to board an Austrian national railroad car. Vote 9-0
  • DIRECTV v. Imburgia (conservative: individual forced into arbitration agreement with business): Federal Arbitration Act leads to enforcement of arbitration agreement. Vote 6-3
  • FERC v. EPSA (liberal: pro-regulation) Federal Power Act allows FERC to regulate the sale of energy in interstate commerce (supplied by the EPSA). Vote 6-2
  • Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan (liberal): decision against ERISA plan fiduciary’s ability to bring suit. Vote 8-1
  • Kingdomware Technologies v. U.S (conservative: business win against federal government): contracting provisions of Veterans Benefits, Health Care, and Information Technology Act apply to all determinations by the Department of Veterans Affairs. Vote 8-0
  • Franchise Tax Bd. v. Hyatt (conservative: for the Franchise Tax Bd. of CA): Nevada not allowed to award damages against CA that exceed those awardable against Nevada in similar circumstance. Vote 6-2
  • Bank Markazi v. Peterson (liberal: against bank/business): post-judgment awards allowed against Bank of Iran in actions brought by victims of terror attacks. Vote 6-2
  • Sturgeon v. Frost (conservative: against ban): Alaska ban on hovercrafts in state waters is not within the purview of the federal Act. Vote 8-0
  • Halo Electronics v. Pulse Electronics (conservative: pro-patent damages): loosening of Federal Circuit’s standard for infringement damages. Vote 8-0
  • Husky Int’l Electronics v. Ritz (conservative: pro-business) enlarges the scope of “actual fraud” under a section of the Bankruptcy Code. Vote 7-1
  • Amgen v. Harris (liberal) pro-stockholders in a suit between the company and stockholders. Vote 9-0
  • V.L. v. E.L. (liberal: business interest questionable): full faith and credit given to a Georgia ruling for a legal parent in Alabama suit. Vote 8-0
  • Puerto Rico v. Franklin California Tax-Free Trust (conservative: pro-business): Puerto Rico law which allows government to restructure debts over obligations of creditors is preempted by Section 903(1) of the Bankruptcy Code. Vote 5-2
  • Universal Health Services v. U.S. ex rel. Escobar (conservative: pro-liability): allows enlarged liability against individuals making misleading representations under the False Claims Act. Vote 8-0
  • Cuozzo Speed Technologies v. Lee (liberal): gives the PTO more flexibility to cancel patents it finds to be unpatentable in light of prior art. Vote 6-2
  • RJR Nabisco v. The European Community (conservative: restricts individuals’ rights to bring suit): private RICO plaintiffs must show specific domestic injury. Vote 4-3
  • Simmons v. Himmelreich (liberal: pro-individual): Federal Tort Claims Act bar loosened so that it doesn’t apply when claim is within the Act’s exceptions section. Vote 8-0
  • U.S. Army Corps of Engineers v. Hawkes Co. (conservative: pro-business): respondent businesses that received a jurisdictional determination to discharge material on wetlands have permit upheld as final and judicially reviewable agency action.        Vote 8-0

While there is obvious room for disagreement on the case coding, both in terms of ideological direction and in terms of nexus to business interests, this Term’s outcomes appear to predominately favor such business interests. Supreme Court decisions that affected individual’s rights, such as Fisher and Whole Woman’s Health, made the biggest headlines this year, and overshadowed the Court’s decisions in other areas.  When the past term is examined as a whole and specific to business interests though, the Court appears consistent with its past practice of supporting these interests and positions.  Based on this evidence and contrary to some reports (yet not others), the Court may not have moved to the Left – or if so at least not with much gusto.


On Twitter: @AdamSFeldman

Coded with the help of the Supreme Court Database

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