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What’s the Baseline?

Not all probusiness decisions are created equal. There is an important difference between decisions that ratify the status quo and those that alter the law and upset settled expectations. There is likewise a meaningful difference between shifting the law in a probusiness direction or merely ratifying a probusiness legislative deal or administrative ruling. While the former may be evidence of an actual probusiness bias, the latter may illustrate nothing more than deference to the political branches, and may only yield probusiness outcomes so long as the political branches are sympathetic to business interests.

A highly deferential court may seem quite probusiness while upholding the decisions of Republican-controlled agencies, but much less so once a Democratic administration is in control. Data showing that the Court often sides with the Solicitor General’s office in business cases could simply be evidence that the Court is deferential to the federal government as opposed to objectively probusiness. A more nuanced examination of the pattern of decisions in business-related cases may reveal that what appears to be a probusiness orientation is something else entirely, such as a preference for alternative dispute resolution or a hostility to entrepreneurial tort litigation.

Another potentially important distinction is whether the Court is adopting business-friendly default rules, or entrenching probusiness rules. For instance, there is a meaningful difference between decisions in which the Court adopts a statutory interpretation favored by business interests—an interpretation which Congress retains the ability to overturn—and decisions in which the Court announces a substantive rule of constitutional law that benefits business. In the former instance, the Court may be doing nothing more than deferring to the legislature regarding whether to shift the law in a less business-friendly direction. In the latter, the Court is entrenching a substantive rule that will benefit business indefinitely.

In Stoneridge Investment Partners v. Scientific-Atlanta, Inc., for example, the Court rejected the invitation to recognize “scheme liability” for securities fraud.[1] The Warren Court may have been less reticent to opening the door to such litigation, yet there is nothing in the Roberts Court’s decision that would preclude Congress from authorizing such suits. The Court’s Ledbetter decision rejecting Lily Ledbetter’s equal pay suit rested on the majority’s interpretation of the relevant statutory text. It was controversial, and was quickly overturned by Congress. A constitutional judgment could not be so easily corrected. Insofar as many of the Roberts Court’s most significant probusiness decisions were statutory cases, this should inform the analysis, as any probusiness orientation could be subject to political constraints.

In “Supreme Court, Inc.,” Rosen alleged that there had been an “ideological sea change” on the Court because it lacked an “economic populist like William O. Douglas” who (in his own words) was “ready to bend the law in favor of the environment and against the corporations.”[2] It’s certainly true there has not been any justice on the Court like Douglas since he left the Court in 1975. Equally significant, there has been no justice of the reverse stripe, willing to aggressively push the law to advance business interests or pursue a broader laissez faire judicial philosophy. That is, while the Court lacks a Justice Douglas, it also lacks a Justice Rufus Peckham. Indeed, it has not had a justice that fits either profile for decades.

  • [1] 552 U.S. 148 (2008).
  • [2] Rosen, supra note 8.
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