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Toward a More Complete Picture

Is it fair to call the Roberts Court “probusiness”? Looking at the broader pattern of cases, there is little evidence that the Court, or any of the justices, are motivated [1]

by a desire to help business, as such. There have been too many Roberts Court decisions in which the business community generally, and big business in particular, has lost big to support such a claim. But there are many justices on the Court who have doctrinal or jurisprudential commitments, such as a suspicion of policy making through litigation, that often work to the business community’s advantage.[2] So while there is little evidence the Court seeks to help business, as such, there are aspects of the Court’s dominant jurisprudence that work to the advantage of business interests.

To the extent the Roberts Court is probusiness, it is so not because it has embraced an aggressive agenda to impose constitutional constraints on the government’s power to regulate economic activity or to rewrite the law to favor business interests. Rather, the Roberts Court can be called probusiness insofar as it is sympathetic to some basic business-oriented legal claims, reads statutes narrowly, resists finding implied causes of action, has adopted a skeptical view of antitrust complaints, and does not place its finger on the scales to assist nonbusiness litigants. This approach is highly deferential to the political branches, particularly the legislature, and will produce probusiness results only insofar as the other branches adopt or maintain relatively business-friendly postures. With a more interventionist Congress or less sympathetic Solicitor General’s office, this approach might not be probusiness at all.

Where business interests seek outcomes that are in line with the justices’ doctrinal commitments, they can expect to prevail. Yet where business interests are unable to marshal arguments that appeal to the justices’ underlying judicial philosophies, their odds are less favorable, no matter how much business groups may believe is at stake. So rather than say this is a Court that is probusiness, it is more accurate to say that this is a Court that business likes—except when it doesn’t. Whether or not one concurs with this assessment, this volume should make clear that the Court’s tendencies in business-related cases are not easily reduced to a hashtag slogan.

  • [1] 558 U.S. 310 (2010).
  • [2] E.g., former Solicitor General Kenneth Starr suggests that the business cases show that theCourt “is not so much pro-business as it is massively skeptical of civil litigation, especially nationwide civil litigation." Kenneth W. Starr, The Roberts Court & the Business Cases, 35 Pepp. L. Rev. 541,541 (2008); see also Franklin, supra note 18 (“the Court’s decisions in business cases are characterized not so much by a bias in favor of business per se, but by a skepticism about litigation as a modeof regulation.”).
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