Epstein's Rebuttal to Times Piece on Rightward Tilt of SCOTUS

Is the Supreme Court Tilting Right?

Conspiratorial theories about Supreme Court justices are easy to advance, but far more difficult to refute. This lamentable tendency is evident in a front-page story by the New York Times’s Adam Liptak, which carries the seductive title, "Justices Offer Receptive Ear to Business Interests."

Liptak ominously reports that the Supreme Court has agreed to hear an appeal from Wal-Mart, which is resisting a huge class action in an employment discrimination suit, and a second appeal that deals with carbon dioxide emissions from power plants, both of which are matters of great importance. He also mentions the recent Supreme Court decision that is everyone’s favorite whipping boy, Citizens United v Federal Election Commission, which struck down some limitations on campaign expenditures.

Reading Liptak’s article, it is not hard to infer that the Supreme Court has tilted in a lamentably partisan way.

The spark for Liptak’s column is an impressive and dispassionate piece of empirical scholarship by legal scholars Lee Epstein, William Landes, and Richard A. Posner entitled, "Is the Roberts Court Pro-Business?" The study reports two key conclusions: first, that since 1953, business decisions have come to represent an ever-increasing fraction of the cases coming before the Supreme Court and, second, that under the Roberts Court, more of these cases have been decided in a pro-business direction than in previous years, including the last five years of Chief Justice William Rehnquist’s Supreme Court.

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