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The Market Isn't 'Free' if the Refs Consistently Rule for One Side

The Market Isn't 'Free' if the Refs Consistently Rule for One Side

One of the most often-repeated arguments against government regulation of the economy is that regulation limits the free market and constrains growth and innovation. The idea is that if corporations and individuals do bad things, the market will punish them and they won't survive and thrive. The argument does have a simple logic to it. Too bad the real world isn't simple and the argument fails to account for what happens in the real world.

For instance, what if the market wasn't free at all, but the referees in charge of making sure there is a fair and level playing field for everyone consistently chose one side over the other? In that case, we wouldn't have a free market, we'd have a rigged market. That appears to be what we have in the United States, writes Ian Millhiser at Think Progress:

So far this term, the Supreme Court handed down eight cases where the United States Chamber of Commerce filed a brief—and a majority of the justices sided with the Chamber in all but one of these decisions. The one outlier decision was a case involving anti-retaliation protections for whistle-blowers, where the justices votes broke down along unusual lines, with Justice Ruth Bader Ginsburg writing the majority opinion and Justice Sonia Sotomayor in dissent.

But that could just be a statistical anomaly, where this term just happened to be filled with cases that the Chamber should've won based on the merits, not based on the ideology of the justices on the court. The Constitutional Accountability Center took a look at all of the Chamber cases before the Supreme Court going back to 1981 and found that this year isn't an anomaly, it's part of an on-going trend, says Millhiser:

As their data reflects, corporate America got a big boost in the nation’s highest court shortly after Chief Justice John Roberts (and his conservative colleague Justice Samuel Alito) became justices.

One can see the change over time clearly in the graphic above. The Burger Court, from 1981–1985, ruled with the chamber less than half the time. The Rehnquist Court, from 1994–2005, jumped to supporting the Chamber 56% of the time. The Roberts Court has ruled with the Chamber 72% of the time, with the current session reaching nearly 88% of the time. That is what statisticians would call a very clear trend.

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