A Century of Business in the Supreme Court, 1920–2020
By Lee Epstein and Mitu Gulati. Full Text.
A decade and a half into its life, we ask: how pro-business is the Roberts Court? Using a simple objective measure—how often does business win in the Court when it is fighting a non-business—we find that the Roberts Court may be the most pro-business Court in a century. The win rate for business in the Roberts Court, 63%, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48%). The question is, why? It is tempting to conclude that this pro-business result is purely a function of there being a Republican majority of Justices on the Roberts Court. However, the data suggest that the story is more complex. Additional features that emerge from the data are: (a) It is not just the Republicans on the Roberts Court who are more pro-business than in prior Courts, but the Democrats as well; (b) The Government, through the Solicitor General’s (SG) office and across both Democratic and Republican administrations, has been more supportive of business positions than in prior eras; and (c) An elite Supreme Court bar has emerged in recent years, and businesses have hired them disproportionately so as to better influence the Court.