Eugene Volokh points out that the number of amici briefs filed in “business” cases in the United States Supreme Court are roughly evenly divided between the “pro-business” and “pro-consumer” side, thus refuting a major claim made in the recent piece by Jeffrey Rosen. We blogged about this same issue previously here. Indeed, as we pointed out, the recent Exxon Valdez case shows the vast majority of amici briefs coming from the plaintiffs’ side.

Jeffrey Rosen’s article about the pro-business leanings of the U.S. Supreme Court (see earlier post here) contains an interesting quote from David Vladeck, who used to work for the Public Citizen Litigation Group and is now a law professor at Georgetown. Vladeck contends that U.S. Supreme Court cases pitting consumer lawyers against big business have not been fair fights, because business interests generate more amicus briefs:

“There’s us on one side, with a brief or two, and industry on the other side, with a well-coordinated campaign of 10 or 12 briefs, with each one written by a member of the elite Supreme Court bar that address an issue in enormous depth.” He added, ruefully, “You admire their handiwork, but it’s frustrating as hell to deal with.”

The numbers don’t support Vladeck’s complaint, at least not in the Supreme Court’s recent punitive damages cases. To the contrary, it is the pro-plaintiff groups that have generated more amicus briefs. For example, in the Exxon Valdez case currently pending before the court, the Supreme Court’s docket lists 16 amicus briefs on the merits in support of the plaintiffs, compared to only seven amicus briefs for the defense. In the court’s previous punitive damages case, Philip Morris v. Williams, the docket shows the amicus briefs were more evenly distributed, with each side generating 12 amicus briefs on the merits.

Perhaps the punitive damages cases are atypical. Maybe a study of all the Court’s business cases over the last few years would support Vladeck’s assertion. But looking at the punitive damages cases, it does not appear that the plaintiffs’ bar is having any trouble generating amicus briefs to support their positions.

Jeffrey Rosen has an article in the New York Times Magazine in which he contends that there is a pro-business consensus on the United States Supreme Court. He points out the the U.S. Chamber endorsed the nominations by President Clinton of Justices Ginsberg and Breyer because of their perceived understanding of business interests. In fact, as Rosen explains, “Exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent.” Rosen also points to a series of recent wins by business interests in the United States Supreme Court, often with unanimous or close to unanimous votes. The article also focuses on the interesting point that in some cases, such as punitive damages, certain “conservative” justices such as Justices Scalia and Thomas actually do not come down on the “pro-business” side. We have previously blogged about that issue here and here.