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Is the Roberts Court Business Friendly? Is the Pope Catholic?

J. MITCHELL PICKERILL

Introduction

The underlying reason for the compilation of essays in this book is that there seems to be something unique or different about the Roberts Court in cases involving business interests, at least compared to its predecessors[1]. Much of the commentary on the Roberts Court in the last several years depicts the Court as a friendly venue for business litigants and business interests. It has been argued that since John Roberts assumed the chief justiceship, the proportion of the docket devoted to business litigation appears to have increased; outcomes seem more likely to favor business interests; and the Court seems to be more consensual in its probusiness decisions with divisions seemingly defying the expected conservative-liberal blocs. In this chapter, I provide an overview of outcomes in Supreme Court cases with economic and business implications, comparing the Roberts Court to past Courts.

In the first section of this chapter, I analyze the Supreme Court’s decisions and votes in economic-oriented and business-oriented cases from the beginning of the Vinson Court through the end of the 2009 term of the Roberts Court. Using the U.S. Supreme Court Database (the “Database”), I analyze the ideological behavior of Justices Roberts and Alito compared to the justices they replaced, Rehnquist and O’Connor.[2] All four justices have consistently voted in the conservative, or probusiness, direction in cases involving union activity and economic activity. I then explore the economic activity decisions of the Court over time to demonstrate that despite the ideological similarities among Roberts, Alito, Rehnquist, and O’Connor, the Roberts Court as a whole is somewhat more likely than previous Courts to reach outcomes that favor business interests. There has also been a slight increase in the proportion of the Court’s docket that consists of economic activity cases.

In the next section, I consider the implications of empirical analyses from the first section. From the perspective of a political scientist, it should not be surprising that the Roberts Court has probusiness tendencies. The predominant theory of Supreme Court decision making, the “attitudinal model,” would predict that conservative justices would generally vote in a conservative direction, which would favor business interests in economic activity cases. Because the Supreme Court is packed with conservative justices appointed primarily by Republican presidents, we should therefore expect a probusiness court. However, the attitudinal approach alone is unsatisfactory because it does not adequately explain why the Roberts Court became slightly more probusiness than its predecessors despite a very similar ideological balance, nor does it place that shift in a broader historical context. The data reveal that the Court has gradually been moving in the conservative, or probusiness, direction for several decades, and the Roberts Court’s probusiness inclinations are better understood as part of a long trend associated with the rise of conservatism, Republican electoral victories, and, ultimately, the migration of those principles onto the Court through presidential appointments.

Over time Republican presidents sought to entrench a free market, deregulation, and probusiness agenda in the judiciary, and in the Supreme Court in particular. And as a Democratic president during a conservative era, Bill Clinton’s opportunities to oppose core probusiness values of the dominant lawmaking coalition were limited. In fact, much of his success was dependent upon his ability to neutralize, or preempt, cleavage issues between the parties. One of the issues Clinton successfully preempted was the differences between the parties in their approach to the economy and business. Clinton’s appointees to the Court were thus committed to other core values of the Democratic Party, but less committed to those issues he sought to preempt. By the time President George W. Bush appointed Roberts and Alito, there was broad national consensus on approaches to business regulation, and most of the members of the Court had been influenced by the law and economics movement. As the title of this chapter indicates, I conclude that asking if the Roberts Court is probusiness is akin to asking if the Pope is Catholic. Not only is it an unquestionable fact, but from a historical and political perspective, it should be an uncontroversial and wholly expected fact as well.

  • [1] Portions of this chapter are adapted and updated from J. Mitchell Pickerill, Something Old,Something New, Something Borrowed, Something Blue, 49 Santa Clara L. Rev., 1063 (2009).
  • [2] The Database and supporting documentation are now maintained at Washington University.Supreme Court Database, available at http://scdb.wustl.edu/index.php (last accessed July 14, 2015).
 
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