What Do We Mean By a "Pro-Business" Court — And Should We Care?
A consistent theme in recent years in Supreme Court reporting— at least that of the “mainstream media” that skews to the left side of the American political debate —has been the notion that the Roberts Court is unusually “pro business.” For example, Adam Liptak, the lead Supreme Court reporter for The New York Times, reported in 2013:
The business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, . . . its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.
Liptak’s story was based on an academic study by Lee Epstein, William Landes, and Richard Posner published in the Minnesota Law Review. The Epstein, Landes, and Posner study examined all Supreme Court cases from 1946 through 2011. Rather than coding specific cases as “liberal” or “conservative,” the study principally examined cases that had one and only one business party and looked at case outcomes. In addition to concluding that the Roberts Court is friendlier to business interests than its predecessors, the study also concluded that Chief Justice John Roberts and Justice Samuel Alito are likelier to vote in favor of business interests than any other justices to have served on the Court during the past sixty-five years.
In this Article, I advance three main observations about these claims. In Part I, I argue that there is nothing inherently wrong about the Supreme Court being pro-business, at least to the extent that it is not favoring “crony capitalism” or the fruits of big-business lobbying that generate barriers to entry, but rather reaching decisions that are generally applicable and pro-free-market, expanding the economic opportunity set for Americans over time. In Part II, I outline some of the methodological problems underlying the evidentiary claim that the Roberts Court is, in fact, pro-business and give a summary evaluation of the Court’s recent docket with respect to business. Finally, in Part III, I question the premise and ask if we are placing undue emphasis on the Supreme Court, when so much government enforcement power over business today exists essentially outside of judicial review.
James R. Copland is a senior fellow and director of legal policy at the Manhattan Institute.
This piece originally appeared in Case Western Law Review