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

The Myth of a Pro-Business SCOTUS

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 Review article on the “deformation” of civil procedure. Miller argues that the procedural decisions of the Supreme Court on critical matters, such as pleading and class actions, have often taken a pro-defendant stance that could easily tilt the balance strongly in favor  of business interests. In their detailed empirical analysis of Supreme Court decisions, Professor Lee Epstein (no relation) of the University of Southern California, together with my University of Chicago colleagues Professor William Landes and Judge Richard Posner, also observe a pro-business slant on the Supreme Court in their recent article in the University of Minnesota Law Review. They conclude: “The Roberts Court is indeed highly pro-business—the conservatives extremely so and the liberals only moderately liberal.”

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