The US Supreme Court has been all over the news for decisions about openly carrying guns in public (yes) and nationwide abortion rights (no). Next term, the legality of affirmative action in education will be up for consideration. But the Court’s reach extends far beyond these hot-button social issues, and the less controversial day-to-day decisions affect Americans’ lives as well. Take for example cases that concern business interests. Whether they are challenging some pesky and costly environmental regulation or enforcing mandatory arbitration clauses, business cases constitute an important part of the Supreme Court’s docket. The question we are interested in is: How much does the current court favour business? Using the parlance of Supreme Court watchers, we will refer to courts by the last names of their chief justices, making this one the Roberts Court, after Chief Justice John Roberts. In 2013, one of us (with Richard Posner and William Landes) analysed that court’s first six terms in existence, and found it to be one of the most favourable to business in sixty-five years. The article used a simple measure: How often do businesses win in the Supreme Court when they are litigating against non-business interests? That article, and some others making similar claims, generated heated debate over whether the Roberts Court was in fact as friendly to business as the article suggested. We now have 15 terms of data on the Roberts Court, covering both Democrat and Republican administrations. Using that same measure, we ask the same question — and then look at prior courts going back a century. As Figure 1 shows, the Roberts Court appears to be the most pro-business Court in that period. While the number of business cases the court hears is relatively low compared to history, the win rate for business in the Roberts Court, 63.4 per cent, is 15 percentage points higher than the next-highest rate of business wins over the past century (that was the Rehnquist Court, at 48.3 per cent). Why?
Lee Epstein & G. Mitu Gulati, How pro-business is the Roberts Court?, Financial Times (FT.com) (August 9, 2022).