Supreme Court justices take two oaths. The first, required of all federal officials, is a promise to support the Constitution. The second, a judicial oath, is more specific. It requires them, among other things, to “do equal right to the poor and to the rich.”
A new study being released on Monday from economists at Yale and Columbia contends that the Supreme Court has in recent decades fallen short of that vow.
The study, called “Ruling for the Rich,” concludes that the wealthy have the wind at their backs before the justices and that a good way to guess the outcome of a case is to follow the money.
The study adds to what Justice Ketanji Brown Jackson, in a dissent in June, called “the unfortunate perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens.”
The study found that the Supreme Court has become deeply polarized in cases pitting the rich against the poor, with Republican appointees far more likely than Democratic ones to side with the wealthy. That is starkly different from the middle of the last century, when appointees of the two parties were statistically indistinguishable on this measure.
The general critique is not new, and it may figure in the drop in public confidence in the court in recent years, as opinion polls show.
In a 2021 book, “Supreme Inequality,” Adam Cohen, an author and former member of The New York Times’s editorial board, argued that “the court’s decisions have lifted up those who are already high and brought down those who are already low.”
In an interview, Mr. Cohen said the new study from the economists covered ground that “some of us have been observing for a long time.” He pointed to Supreme Court decisions amplifying the role of money in politics, weakening public sector labor unions and curtailing federal regulators.
“But it is great to see,” he added, “respected academics crunching the numbers and producing the data to show that this is exactly what has been going on.”
Law professors and political scientists have studied a related question, examining the rate at which businesses prevailed in various Supreme Court eras. They used a straightforward methodology, one that first identified cases with a business on one but not both sides and then examined how the court ruled. (The adversary might be an employee, job applicant, shareholder, union, environmental group or government agency.)
One such study, conducted by Lee Epstein of Washington University in St. Louis and Mitu Gulati of the University of Virginia, concluded that over the century ending in 2021 the court ruled for businesses an average of 41 percent of the time. But the court led by Chief Justice John G. Roberts Jr. since 2005 decided for businesses 63 percent of the time.
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In contrast, businesses prevailed just 29 percent of the time before the liberal court led by Chief Justice Earl Warren from 1953 to 1969, that study found.
The new study — conducted by Fiona Scott Morton, of Yale, and Andrea Prat and Jacob Spitz, both of Columbia — relied on a more ambitious methodology, one that categorized the parties as rich or poor “according to their likelihood of being wealthy” and a justice’s vote as favoring the rich “if its outcome would directly shift resources to the party that is more likely to be wealthy.”
By way of example, they said, the court’s 2007 decision in Massachusetts v. Environmental Protection Agency, which required the agency to regulate emissions of greenhouse gases if it found that they endangered public health, favored the poor “because it shifts resources away from shareholders who are, on average, wealthier than average citizens.”
There is, the study’s authors conceded, a subjective component to such judgments. But they developed what they said was a transparent and replicable protocol, coding decisions as favoring the rich if, for instance, they ruled for employers against workers, for companies against customers, for businesses against the government, to reduce competition or to weaken the social safety net.
Yale undergraduates used that protocol to code decisions involving economic issues from 1953 on. Cases that were unanimous or hard to categorize were discarded, and quality checks were used to try to ensure consistency.
“We focused our efforts on cases where an intelligent person can work out which way the money is moving,” Professor Scott Morton said in an interview.
The study showed a growing partisan divide between the justices. In 1953, the study’s authors wrote, “Democratic and Republican appointees are statistically indistinguishable, deciding on average about 45 percent of the cases in favor of the rich.” By 2022, they wrote, “that share is about 70 percent for the average Republican justice and 35 percent for the average Democratic justice.”
“Put another way,” they added, “the Republican appointees have become more pro-rich at roughly twice the rate that Democrat appointees have become more pro-poor.”
Legal scholars had mixed reactions to the economists’ study.
Professor Gulati was initially wary. “At first, I got the heebie-jeebies at their coding,” he said. “Undergraduates reading cases and deciding? That’s a tough judgment call for even an experienced lawyer or judge.”
But he added that it might be “time to embrace new methods that give us fresh perspectives.”
Jonathan Adler, a law professor at William & Mary, was not impressed.
The study included “some indefensible assumptions,” he said, like one that all “regulation, including environmental regulation, is pro-poor.”
“In the end,” he said, “it appears to show nothing more than that Republican appointees are more conservative than they used to be.”
At his confirmation hearings in 2005, Chief Justice Roberts mused about whether he would stand up for the powerless.
“Somebody asked me, you know, ‘Are you going to be on the side of the little guy?’” he said. “And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution. That’s the oath.”
Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.
The post Supreme Court Increasingly Favors the Rich, Economists Say appeared first on New York Times.
