Let’s test your analytical skills–Pro-business rulings of the Supreme Court over time

Assume the following figure representing the Court’s business decisions between 1946 through 2011 is accurate.  The higher the peak, the more “pro-business” the Court was during that time frame.  The lower the peak, the more “anti-business” the Court was during that time frame.

Don’t worry about the two lines representing decisions or votes.  For practical purposes, they are the same. Don’t cheat.  Just analyze the figure, don’t go looking for its source.


What does this figure tell you about whether the current Court is “radically” pro-business? Let me know what you think.


16 responses

  1. My thoughts are that this “pro-business” peak is a result of the radical influx of foreclosure lawsuits that have flooded the court system. The court, while perhaps sympathizing with consumers has no other alternative but to enforce the applicable laws which favor lenders.

  2. Without the data (and therefore calculating the variance bars) I’d say it’s near impossible to tell, but my old grad school statistics eye suggests that there hasn’t been any statistically significant change over the 1945-2012 time period. (Can I assume that the last data point on there is 2012? I counted all the kinks.)

    If I were forced to take a position, I’d say that I wouldn’t be surprised if the trend line comes in right near the middle, with the “m” in the linear regression being close to 1.

    The other question I have off the top of my head is how the author determined whether a decision was “supporting business”. There are lies, damn lies, and statistics — and if some so-called “pro” or “anti”-business decisions were consistently operationalized on the basis of remanding or some other kind of procedural method, I could imagine that a savvy statistician could make that trend line dance and twist.

    Of course, until the composition of the Court changes entirely — and this is very hard to tell, since it’s a sliding average — if you look solely at the post-2005 data (from when the Chief began), the story might be a little more convincing.

    So let’s take a look at that from — say 1800 or so through 2012 to account for 100 years before and after Lochner, and I’d might be more inclined to take a more solid stance.

  3. Also… I can’t believe I missed that you said 1946 to 2011. You just made me sign up for a WordPress account. Ugh. Oh, what depths to which shaming drives us all.

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  5. Given the inherent vagueness of the criteria, it tells me very little. A couple of first impressions:

    1. The statistics are less than helpful because the term “‘radically’ pro-business” can be understood to encompass magnitude as well as quantity. That is, one could argue that, say, Citizens United is a “pro-business” decision of far greater reach than previous pro-business decisions. Simple example: if you’re just counting pro-civil-rights decisions, then Sweatt v. Painter and Brown v. Bd. of Educ. both count once. But it’s hard to argue that Brown wasn’t the more significant decision–i.e., the more “radically” pro-civil-rights decision. The data here is too limited to account for the subjectivity of the underlying complaint.

    2. But on the other hand, the Court isn’t writing on a blank slate. Assume, for instance, that the executive and legislative branches (particularly the legislative) spend many years beholden to pro-business interests, and enact pro-business legislation as a consequence. A resulting judicial decision upholding or implementing that law might also be seen as pro-business, but given the presumptions associated with the evaluation and interpretation of statutory law, such a decision would hardly be unexpected. The trend of the graph is headed up and to the right, but a court is likely to appear more “pro-business” when the other branches of government are stacking the deck to favor that result. The data tells us little about causality, and thus about the attitude of the court.

    I guess the bottom line is that the underlying proposition is too vague to empirically test.

  6. Another follow-up thought: the data is limited by the failure (as far as I can tell) to account for the other side of the coin: so-called “anti-business” decisions.

    For instance, if a court during one term reaches five pro-business decisions and five anti-business decisions, it’s hard to characterize that as “pro-business” based solely on the numbers. And if, during the following term, the court reaches 10 pro-business decisions and 10 anti-business decisions, it’s hard to say that it became more radically pro-business solely because the gross number of pro-business decisions increased. It’s just that the docket changed. If, on the other hand, the court reached five pro-business decisions and no anti-business decisions, then perhaps it did become more pro-business.

    If you tell me you’ve been flipping a coin and got heads eight times, I can’t evaluate the statistical probability of that result without knowing how many times the coin was flipped. It’s about the net, not the gross. Now, perhaps the data accounts for that, but I’m not sure whether “fractions of votes and decisions in support of business” represents a fraction of the cases in which business interests were implicated, or a fraction of the docket as a whole.

  7. I am fairly confident that the fraction of “pro business” rulings of the last few years reached what appear to be historical highs because of the Court saying over and over: “Yes, arbitration clauses are enforceable, and we really mean it.” A few lower courts (yeah, I’m looking at you Ninth Circuit) seem slow to get the message. If you controlled for Ninth Circuit obtuseness, my guess is that a least squares fit to the data points would be almost level. As it is, it appears to me to have only a slight upward slope.

    Studying just Supreme Court decisions creates a massive sample bias problem as well. The Court takes cases, generally, because the lower courts are divided (so the issue is close) or the issue is of great national importance. I would also have a hard time coding many Supreme Court decisions simply as “wins” or “losses” for business. Was the ruling on the Affordable Care Act anti-business? Perhaps the upholding of the individual mandate might be seen that way, but the portion striking down as beyond Congress’s power to make states take the Medicaid money probably pulls the other direction. When the Court ruled that arbitrators get to interpret agreements to see if they allow for class actions in that forum, who won? I suppose it would depend on whom you get as an arbitrator and whom you would have had as a judge.

    So my answer is “no” — the graph does not support the hypothesis.

  8. You are correct in that “radical” was a kind of a ringer. But, I did this purposefully. See my most recent post about the NYT that is coming today soon.

    All the best.


  9. If you are referring to arbitration clauses and the like, I agree. See also Dean Borcher’s comment.

    All the best.


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  11. Dear Rich: Boy, this is getting bad. We really can’t be seen together. Or worse yet, we could team teach a course to UNL and Creighton Law students entitled: “The Way Stuff Actually Works.” Only someone might think of a better word than “stuff.” I’m only half joking. Your faithful correspondent, Pat.

  12. Pat,

    That would be loads of fun. I, too, am sort of serious.

    But with declining law school enrollments, if kids really knew how things worked, a mass exodus from law school is a risk. Both of us have too many friends dependent upon younguns remaining content to pay tuition so that one day they will save the world.

    We have to be careful. So, we should title the course “They way things really work–but don’t worry you are special!”

    All the best.


  13. Rich, the odd thing is that I still think law school is about the best education available. I had more inspiring teachers in law school than I did at any other level of education — and it wasn’t close. Although hardly anything specific that I learned in law school is of much use to me, the ability to put things into a conceptual framework has lasted the rest of my life (thus far). In a funny way, Nebraska really is special. Former students of mine and others attempted to draft me into the Senate race, which I flirted with until I came to my senses. I’m not sure their motivations were pure. I think that they wanted the entertainment value of watching me debate the other candidates. And, if I accidentally got elected, they wanted to see me on the Judiciary Committee. Maybe a CLE. We just need some way to have it include some “ethics” hours, so that we have a captive audience. Plus now that they’ve already completed law school, there’s no going back baby. Pat.

  14. Pat,

    I could not agree with you more. If you want to really learn how to think and if you want to be taught how to think by extraordinarily talented teachers, you can’t beat law school. Attendance at law school is an intellectual feast.

    The dissonance that arises is when the student graduates and begins to practice law where he or she is no longer is challenged in the same ways he or she became acquainted with in law school. Oddly, and maybe this is only in retrospect, I loved the practice of law like I loved law school. But, I had two years with Judge Ross to begin the transition from student to lawyer and boy how that was crucial for me. That’s one of the reasons why I think legal education in America is tooshort, a position that few agree with.

    I also agree that Nebraska is special (I am an Ohio ex pat) and I agree with your former students and friends regarding their desire to see you in the Senate race. It’s never too late, my friend! In truth, I like you too much to encourage you more fervently because the reality of being a US Senator strikes me as a soul stealing undertaking.

    All the best.


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