Supreme Court justices take two oaths. The first thing required of all federal officials is a promise to support the Constitution. The second, a judicial oath, is more specific. Among other things, it requires them to “do the same to the poor and the rich.”
A new study released Monday by Yale and Columbia economists says the Supreme Court has failed to live up to that promise in recent decades.
The study, titled “Ruling for the Rich,” concludes that the rich have the wind at their backs before judges and that a good way to gauge the outcome of a case is to follow the money.
The study adds to what Justice Ketanji Brown Jackson called in a June dissent “the unfortunate perception that wealthy interests have an easier path to appeal in this court than ordinary citizens.”
The study found that the Supreme Court is highly polarized in cases pitting the rich against the poor, with Republican candidates far more likely than Democratic candidates to side with the rich. This is very different from the middle of the last century, when candidates from both parties were statistically indistinguishable in this regard.
The general criticism is not new and could be a reason why public trust in the court has declined in recent years, as opinion polls show.
In a 2021 book titled “Supreme Inequality,” author and former New York Times editorial board member Adam Cohen argued that “the Court’s decisions have elevated those who were already high and brought down those who were already low.”
In an interview, Mr. Cohen said the economists' new study covers issues that “some of us have been watching for a long time.” He pointed to Supreme Court decisions that increased the role of money in politics, weakened public sector unions and curtailed federal regulatory authority.
“But it's great to see,” he added, “respected scientists analyzing the numbers and producing the data to show that that's exactly what happened.”
Law professors and political scientists have examined a related question, examining the speed at which corporations prevailed in different Supreme Court eras. They used a straightforward methodology of first identifying cases where a company was involved on one but not both sides and then examining how the court ruled. (The opponent can be an employee, 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 through 2021, the court ruled in favor of corporations an average of 41 percent of the time. But the court, led by Chief Justice John G. Roberts Jr., has ruled in favor of corporations in 63 percent of cases since 2005.
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In contrast, between 1953 and 1969, corporations prevailed only 29 percent of the time before the liberal court led by Chief Justice Earl Warren, the study found.
The new study — conducted by Fiona Scott Morton of Yale and Andrea Prat and Jacob Spitz of Columbia — relied on a more ambitious methodology, one that classified parties as rich or poor “according to their likelihood of being rich,” and a judge's ruling as favoring the rich “if his outcome would shift resources directly to the party more likely to be wealthier.”
As an example, consider the court's 2007 decision in Massachusetts v. Environmental Protection Agency, which required the agency to regulate emissions of greenhouse gases if it found they posed a threat to public health. This favors the poor “because it diverts resources away from shareholders, who are, on average, wealthier than the average citizen.”
The study authors acknowledged that such judgments have a subjective component. But they developed, they said, a transparent and reproducible protocol that coded decisions as favoring the rich when, for example, they ruled in favor of employers against employees, in favor of companies against customers, in favor of companies against the government, to reduce competition or weaken the social safety net.
Beginning in 1953, Yale students used this protocol to code decisions on economic issues. Cases that were unanimous or difficult to categorize were discarded and attempts were made to ensure consistency through quality checks.
“We have focused our efforts on cases where an intelligent person can figure out which direction the money is moving,” Professor Scott Morton said in an interview.
The study showed a growing partisan divide among justices. In 1953, the study's authors wrote: “Democratic and Republican candidates are statistically indistinguishable and, on average, vote in favor of the rich about 45 percent of the time.” By 2022, they wrote, “that share will be about 70 percent for the average Republican justice and 35 percent for the average Democratic justice.”
“In other words,” they added, “Republican-appointed candidates have become pro-rich about twice as fast as Democratic-appointed pro-poor candidates.”
Legal scholars reacted mixed to the economists' study.
Professor Gulati was initially cautious. “At first I was really excited about the coding,” he said. “Students read cases and decide? That's a difficult decision even for an experienced lawyer or judge.”
But he added that perhaps it was time to “adopt new methods that give us new perspectives.”
Jonathan Adler, a law professor at William & Mary, was not impressed.
The study contained “some indefensible assumptions,” he said, such as saying that “all regulation, including environmental regulation, benefits the poor.”
“Ultimately,” he said, “all it seems to show is that Republican candidates are more conservative than they used to be.”
During his confirmation hearings in 2005, Chief Justice Roberts wondered whether he would stand up for the powerless.
“Someone asked me, 'Are you going to side with the little guy?'” he said. “And of course you want to give an answer right away, but if you think about it, if the Constitution says the little guy should win, the little guy will win in court before me. But if the Constitution says the big guy should win, then the big guy will win, because I have an obligation to the Constitution. That's the oath.”