The Roberts Court has long been described as a “pro-business” court. News reports summarizing Chief Justice John Roberts’ first term as Chief Justice described the court as business-friendly. a new york times magazine The profile was simply labeled “Supreme Court Co., Ltd.” Activist groups have aggregated the chamber’s win-loss record, and scholars have published quantitative assessments that show the Supreme Court, led by Chief Justice Roberts, is more sympathetic to corporate interests than any court in recent decades. .
From the beginning, I was skeptical of the “pro-business” label that helps describe the court. Although quantitative evaluation of court decisions has a role, assessing the extent to which court decisions benefit or support business interests requires qualitative assessment of court decisions. A thorough evaluation is required. Moreover, to the extent that corporate groups tend to win some types of cases but not others, it would be beneficial to have a more nuanced and precise explanation of the court’s doctrine. Just a hashtag label isn’t all that useful.
My book of 2016, Business and the Roberts Court We sought to investigate more deeply the courts’ handling of business-related cases. In this volume, subject matter experts have examined various aspects of the court’s jurisprudence. Has the conclusion been reached that the court is “pro-business”? The findings can be summarized as follows.
If business interests seek an outcome consistent with the judge’s doctrine, they can expect to prevail. But if corporate stakeholders cannot put together an argument that appeals to the judge’s underlying judicial philosophy, the odds are not very favorable, no matter how much business groups believe is at stake. Therefore, rather than saying that this is a “pro-business” court, it is more accurate to say that it is a court that does not like business. Unless the business doesn’t like it.
Since then, debate has continued over whether courts should be positioned as pro-business. continuation. For example, in 2022, Lee Epstein and Mitu Gulati published an analysis The Supreme Court’s handling of business cases from 1920 to 2020.
Earlier this semester I announced the following: new paper Reconsidering the question of whether the Supreme Court is properly characterized as “pro-business,” and discussing the extent to which Donald Trump’s appointments to the Supreme Court make the court pro-business (or not). Provides a preliminary assessment. This paper is part of a symposium published in the journal. Annual Report of the American Political and Social Science Association. here is a summary:
The Roberts Court has long been characterized as a pro-business court, perhaps the most pro-business court in a century. To the extent that this purported pro-business orientation is due to the Supreme Court’s Republican-appointed majority, President Trump’s Supreme Court appointments should have further strengthened the court’s pro-business orientation. However, there are reasons to question the general “pro-business” character of the court and the assumption that the increase in Republican-appointed judicial majorities has increased its pro-business orientation. Quantitative analysis describes the relative importance of individual decisions, the broader legal context in which the court’s decisions are made, or how the court’s decisions change or depart from existing legal standards. Often you can’t. President Trump’s court appointments have almost consistently voted in favor of curbing executive branch power, but he has not consistently supported outcomes that are good for businesses. In some areas, particularly cases involving state laws that can disrupt or burden domestic markets, the Roberts court is actually more sympathetic to corporate interests than it was before Trump’s appointment to the court. There is a possibility that it is no longer the target.
Meanwhile, the Roberts Court has become more skeptical of the authority of government agencies and the administrative state. So to the extent that we think that “pro-business” means “anti-regulation,” the Court has been less concerned about business since Justices Gorsuch, Kavanaugh, and Barrett replaced Justices Scalia, Kennedy, and Ginsburg. We can conclude that they have become more cautious.
On the other hand, courts appear to have become more skeptical of business arguments in favor of federal preemption of state regulations, whether or not based on the Dormant Commerce Clause’s preemption doctrine (such as Please consider a case) virginia uranium and National Pork Producers Council), and at the same time be less wary of business arguments that seek to limit the jurisdiction of state courts in tort cases (e.g. mallory). This change is particularly interesting because it appears to signal a shift in the court’s jurisprudence. The change is also due in part to President Trump’s appointments, particularly Judge Gorsuch.
While assessments of the impact of Mr. Trump’s court appointments are necessarily preliminary, these changes are more likely to reflect the judgment of judges than to focus on broad characterizations such as I think it makes the point that it is more useful to think in terms of doctrinal commitments. Anti” business. Thus, for example, one might characterize the court’s emerging jurisprudence as a jurisprudence that is skeptical or hostile toward federal regulation but cautious toward state law. To the extent that this is a fair characterization, courts may look favorably on business concerns in some areas (such as when a group of companies challenges federal regulators), but not in others. This would highlight the lack of sympathy in cases (such as when business groups seek to curb state powers). ). And whether these trends are good or bad is an entirely different matter.
