Epstein, "The Myth of a Pro-Business SCOTUS"

The Myth of a Pro-Business SCOTUS
Richard A. Epstein
Defining Ideas
July 9, 2013

Across a wide range of business cases, the United States Supreme Court is defined by a five-to-four split that pits the conservative quintet of Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito against the liberal quartet of Justices Ginsburg, Breyer, Sotomayor, and Kagan. That split makes it easy for indignant commentators to denounce the Court’s “pro-business” decisions.

Just that position was taken in a forceful New York Times op-ed by Dean and Professor Erwin Chemerinsky of the University of California, Irvine, entitled, with evident sarcasm, “Justice for Big Business.” Much the same theme was echoed by Adam Liptak in his review article in the Times, which announces that “Corporations Find a Friend in the Supreme Court.”

This anti-business mentality is also seen among legal academics. In particular, Liptak cites my NYU colleague, Professor Arthur Miller, and his recent NYU Law Revie