by Kevin Schofield
This weekend’s read is a fascinating essay looking at the current Supreme Court and comparing it to its predecessors over the past century, with regard to one question: How business-friendly is the Roberts Court? (Various Supreme Court eras are generally defined by who is the Chief Justice at the time, perhaps giving these justices too much credit for the influence they might have over their colleagues.) The essay is written by two law professors: Lee Epstein at the University of Southern California and Mitu Gulati at the University of Virginia School of Law.
Measuring the extent of a court’s “business-friendly” bias is difficult. A simple measure is to look at how often a business interest (whether a company itself, or an association, such as a Chamber of Commerce) prevails in a case before the court. But in the case of the Supreme Court, which gets to pick the cases it hears, ideally we would also have to look at whether it is choosing to hear business-related cases at all, and how it is choosing the cases it hears. And it may be the case that lower courts are even more business-friendly, so a business-friendly Supreme Court may not see the need to rehear a case when it agrees with the lower court’s ruling. We also have to recognize that “business-friendly” is relative: For example, over the past 100 years, businesses have won 41% of their Supreme Court cases, slightly less than criminal defendants’ 42% win rate and much lower than the 54% win rate for plaintiffs in civil rights cases. But within that 41% rate is a lot of variability: The Taft Court (1922–1929), considered very business-friendly by historians because it was stacked with former business attorneys, had a 47% win rate for businesses, while the Warren Court (1953–1968) businesses only won 29% of the time.
By this measure, however, today’s Roberts Court still stands alone, with a 63% success rate for businesses. In fact, over the 17 years Roberts has sat as Chief Justice, the success rate has steadily increased: After a 53% rate in 2005 and a low of 44% in 2008 and 2009, it has now moved up to 70% in 2019 and a whopping 83% in 2020.
After laying out the basic statistics, the authors dive into trying to understand the factors that might lead the court to become more business-friendly. An obvious one is the justices themselves, and the authors’ analysis shows that Republican-appointed justices are more likely to vote in favor of business interests than those appointed by Democrats. In fact, the six Republican-appointed justices currently sitting on the Roberts Court have the highest rates of voting for business interests of any justices in the past century. However, the authors also point out that all three justices appointed by Democrats — Kagan, Sotomayor, and the recently retired Breyer — have voting records that would also make them “business-friendly” by historical standards: Sotomayor’s 48% rate, the lowest of the three, is still above the aggregate rate of the Taft Court, and of Taft himself.
Beyond the judges themselves, the authors look at a few other potential factors that would make the Supreme Court’s decisions more business-friendly. The first is whether the federal government itself weighed in on the case, either as a direct party or as a “friend of the court.” Statistics show that the Supreme Court is heavily influenced when the solicitor general, the attorney tasked with officially representing the federal government in front of the Supreme Court, weighs in. And during the tenure of the Roberts Court, the solicitor general has only opposed business interests 20% of the time.
The authors also point to the rise of an elite cadre of attorneys with experience before the court that increasingly represent business interests in cases that come before it. Nowadays, 77% of the attorneys representing businesses have prior Supreme Court experience, compared with only 25% during the Burger Court (1969–1985). According to the authors’ analysis, both Democratic- and Republican-appointed justices are more likely to vote in favor of a business when a Supreme Court-experienced attorney is representing them.
Lastly, the authors looked at whether public sentiment plays a role, given other analysis that shows that over the years, Supreme Court rulings have tended to track with public sentiment. First, it should be pointed out that the Roberts Court seems to be more disconnected from public sentiment, with its recent ruling overturning Roe v. Wade standing out as a key example. But with regard to business, public sentiment on business interests has steadily dropped for the past 30 years, while the court’s business-friendly lean has tracked upward since the late 1960s. The Supreme Court has been bucking the trend on business, and has done so since long before the Roberts Court.
As the authors point out in the conclusion to their essay, while it’s clear the Roberts Court is very business-friendly, there is apparently no single reason why. And like many good pieces of research, this one provokes more follow-on questions that need further study as we try to understand this important trend in how our courts are treating rich and powerful corporations.
Kevin Schofield is a freelance writer and publishes Seattle Paper Trail. Previously he worked for Microsoft, published Seattle City Council Insight, co-hosted the “Seattle News, Views and Brews” podcast, and raised two daughters as a single dad. He serves on the Board of Directors of Woodland Park Zoo, where he also volunteers.
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