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Is The Supreme Court Pro-Business?

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Has the U.S. Supreme Court pivoted toward deciding cases favorably for business interests?

The claim that the Roberts Court is unduly disposed to decide cases in favor of business has been revived by recent decisions such as the one that shot down a shareholder case against a mutual fund and a sexual discrimination case against Wal-Mart.

The Economist has come forth with some figures that seem to support that contention.

The court’s balance shifted in 2006, after George W. Bush picked John Roberts and Sam Alito (two conservatives) to replace William Rehnquist (a conservative) and Sandra Day O’Connor (a centrist). Since then, the kind of cases that the U.S. Chamber of Commerce supports have been more likely to succeed. During 1994-2005, some 56 percent of the cases supported by the chamber and considered by the court succeeded; the success rate during 2006-10 was 68 percent. In 2009-10 the side supported by the chamber won in 13 of 16 cases, five of those by the slimmest of majorities (5-4).

A study by Lee Epstein, William Landes and Richard Posner, entitled “Is the Roberts Court Pro-Business?”, drew similar conclusions. It found that the Supreme Court ruled in a pro-business fashion in 29 percent of cases under Chief Justice Earl Warren (who served from 1953 to 1969).

Under Warren Burger (1969-86) the figure was 47 percent. Between 1986 and 2005, under Chief Justice Rehnquist, it was 51 percent. Under Chief Justice Roberts it has risen to 61 percent.

I’m not sure, however, that this shows what the Economist imagines it does. Another study of the Roberts Court found similar results—but with an added twist.

In this essay, we explore one such variable that may have been especially significant over the past three years: the content of the arguments presented to the Court by the Solicitor General.

To do so, we present an empirical examination of the full universe of the Roberts Court's decisions affecting the interests of business from January 2006, when Justice Alito joined the Court, to January 2009. As a purely descriptive matter, we find that the Court tended to reach results favorable to business interests, and that it tended to adopt the positions urged by the Bush administration. But when those two positions diverged — most saliently, in cases where the United States and the United States Chamber of Commerce filed opposing amicus briefs — the Roberts Court overwhelmingly sided with the government.

This study, however, was conducted during the Bush administration.

It’s possible that the Obama administration’s Solicitors General have had much less success. But before I label the Court pro-business, I'd at least like to see an update to this story.

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