Three years ago, Professor Richard Epstein of the University of Chicago was peddling falsehoods and misconceptions about malpractice law that wouldn’t pass a 1L Torts class. Via Walter Olson, I see he’s back with a piece titled, “The Myth of a Pro-Business SCOTUS,” claiming “Commentators inaccurately condemn the five conservative justices as corporate shills.” He specifically mentions articles by Erwin Chemerinsky, Adam Liptak, Arthur Miller (whose article I discussed previously) and the recent analysis by Lee Epstein, William Landes, and Richard Posner.


Epstein raises three complaints about attacks on the Roberts Court: “selection bias; misplaced significance; and failure to account for the importance of consistently taking the ex ante perspective.”


Before we go on, be sure to read my summary of the Supreme Court’s 2012–2013 Term as it affected consumers, employees, and patients. “Business” — at least big business — won over Middle America at every turn. It’s not just a matter of individuals losing the only tools they have to keep the dangers of corporate greed and recklessness in check. Small businesses, for example, were told in American Express Co. v. Italian Colors Restaurant that they can’t use antitrust laws anymore, because the Supreme Court thinks its better for big banks to reap unjust and illegal profits than it is for small businesses to have their day in court.


Unsurprisingly, when Epstein reviews several recent Supreme Court cases, he leaves AmEx out. Kind of says it all, doesn’t it? 


Much of Epstein’s analysis is simply disingenuous. Consider his argument on “selection bias”:


The simple fact that the Supreme Court comes out on one side or the other tells us little about whether it is pro- or anti-business. The Supreme Court does not randomly choose cases. Rather, it tends to pick those cases that represent the most important unsettled issues now before the Court. … But that fact does not tell us how they compare to earlier justices who, although operating in a very different legal environment, might have decided these cases the same way. It could, in other words, be that the world has moved, not the justices.


Epstein’s assertion is, of course, ridiculous: the Supreme Court should be judged (and can only be judged) on the cases it chose to review and the way it decided them. Epstein’s starting assumption that the Roberts Court is honestly looking for “the most important unsettled issues” is wrong: the Roberts Court doesn’t look for cases that will resolve issues that have confused the lower courts, it seeks out cases that can be used to advance an anti-consumer agenda and then decides them against the consumer. Consider Comcast v. Behrend, which cheated millions of Comcast consumers in the Philadelphia area and created new bad class action law to grant big business effect immunity to cheat millions more.


In Comcast v. Behrend, the Court decided a phantom issue that neither District Courts nor Circuit Courts had any trouble with, an issue that no one in the case had raised or argued until after the oral argument was held at the Supreme Court on an entirely different issue. Originally, Comcast petitioned for certiorari on a question involving the merits of the claim, the Supreme Court granted certiorari on a made-up question relating to the admissibility of expert testimony, held oral argument on that question, and then, when it came time to decide the case, realized that Comcast had already waived the expert testimony issue, and so the Supreme Court rewrote the question again to talk about damages. The Supreme Court then held — in a manner that would impress Joseph Heller — that, because of the complicated appellate path, the plaintiffs had conceded a damages argument that required the class be decertified and remanded for further consideration.


So much for the Roberts Court honestly choosing its issues. It’s worth mentioning they pulled a similar question-presented-switcheroo trick in Citizens United, and that in Genesis HealthCare Corp. v. Symczyk they answered, as the dissent noted, “an imaginary question.” It’s a hallmark of the Roberts Court to go hunting for ways to hurt consumers, no matter how procedurally improper the hunt may be.


Epstein’s “misplaced significance” and “ex ante” argument fares no better:


Just classifying and counting cases as either pro- or anti-business does not resolve two technical difficulties. First, it is difficult to code a case that comes down as pro-business on one issue and anti-business on another; such cases are clearly a bit of both. Second, the counting of cases, even if the outcome is clear, gives no information about the relative importance that the cases have over the long run. To determine that, it is necessary to know how often an issue will tilt the balance, and how large that tilt will be.

Most important, it is always critical to distinguish between the ex ante and ex post effects of decisions. Under the ex post perspective, the question of who wins is asked after the dice have been rolled; here, commentators find it easy to classify outcomes as pro- or anti-business.

But that judgment is much more difficult to make when these cases are reexamined from the ex ante perspective, where the question is to figure out the overall social gains and losses that are likely to flow from the choice of any particular rule before any particular dispute arises. The stumbling block in the analysis is that any decision that benefits particular consumers, say, in the ex post state of the world, may well harm consumers as a broader class in the ex ante state of the world.


This seems to be the new modus operandi of the Roberts Court’s defenders when faced with the undeniable evidence that consumers, employees, and patients lose the vast majority of cases in front of the Roberts Court: throw their hands up in the air and claim that it’s beyond the abilities of mere mortals to assess whether or not a given opinion was really good or bad for consumers.


It’s an intellectually bankrupt “nobody knows” argument, one puts American conservatives like Epstein in league with post-structuralist French philosophers who claim that the words don’t really have meaning. Unsurprisingly, like the post-structualist philosophers, those same corporate shills attempting to defend the radical conservative judicial activism of the past generation practice the “terrorism of obscurantism”, writing something confusing and obscure and then blaming everyone else for “misunderstanding” them when people disagree.


Let’s not mince words: for all of Epstein’s hand-waving claims about the limits of human knowledge and the unknowable complexity of the law, Roberts Court cases like Iqbal, Concepcion, Mensing, Dukes — and, in particular, the odious opinions from the last term like Bartlett, Vance, Nassar, and Italian Colors Restaurant — have been indisputably, unreservedly, unqualifiedly bad for consumers. You don’t have to look far to see the damage as meritorious cases are dismissed (or their class actions not certified) due to the unfair anti-consumer rulings by the Roberts Court. See, e.g., Martin v. Ford Motor Co., 2013 U.S. Dist. LEXIS 92572 (E.D. Pa. July 2, 2013)(citing Dukes and Behrend to deny class action status in lawsuit arising from Ford’s sale of hundreds of thousands of minivans with defective and horribly dangerous axles that were recalled); Cowden v. Parker & Assocs., 2013 U.S. Dist. LEXIS 72253 (E.D. Ky. May 22, 2013)(citing Behrend to deny class action status in lawsuit against insurance agency brought by thousands of agents alleging they were cheated out of commissions).


On the flip side, there’s no serious argument that, say, consumers of generic drugs are better off because Mensing and Bartlett grant pharmaceutical companies immunity from liability for concealing the risks of their products. Those rulings have not even made generic drugs cheaper to our society; they have made them more expensive, because the drug companies have no incentive to avoid injuring people, and no incentive to even warn patients about the risks so people can protect themselves by making safer purchasing decisions. So much for Epstein’s vaunted “free market” principles: he thinks it’s better if consumers don’t even know what they’re buying, and have no recourse for the injuries caused by undisclosed risks. What kind of a “free market” depends upon consumer fraud?


The day-to-day experience of a typical American family is best summed up as, “nickel and dimed by big corporations,” and the Roberts Court has set its sights on making it harder for those families to exercise their legal rights — and, consequently, making it easier for corporations to keep ripping those families off — by reaching for high-impact cases and then deciding them, no matter what a fair analysis would be, against the consumers. The only reason someone would pretend this isn’t happening is if they thought it was a good thing.