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At an aggregate level, the empirical analysis in this chapter indicates that the Roberts Court can be accurately characterized as business friendly. ChiefJustice Roberts and Justice Alito have voted against government regulation and in favor of private economic interests more frequently than their predecessors, although Justice Sotomayor has voted slightly more in favor of government regulation and against private economic interests than her predecessor. And the Roberts Court even after the addition of Sotomayor has ruled in favor of private economic and business interests at higher rates than any other historical period analyzed in this chapter, going back to the beginning of the Vinson Court in 1946. Indeed, in their impressive analysis of the Roberts Court’s decisions involving business litigants as parties (as opposed to the broader set of cases analyzed in this chapter), Epstein, Landes, and Posner reach similar conclusions regarding the probusiness orientation of the Roberts Court.[1]

However, it would not be accurate to characterize the Roberts Court’s record as a sharp break from the past. To the contrary, the record is best viewed as a continuation of a long-term trend that was initiated by Nixon’s appointees to the Court, fully entrenched by Reagan’s and Bush’s appointees, and accepted by Clinton’s appointees, a perspective not included in the analysis of Epstein, Landes, and Posner. In this sense then, the Roberts Court’s predisposition toward economic and business interests is best explained by understanding the relationship of the Court to the broader political regime within which it operates and where it is situated in political time (as opposed to merely comparing voting behavior on the Court using the chief justice as the historical unit of analysis).

By elaborating on the connection between regime politics, political time, and the evolution of commitments in the broad area of economic policy and business regulation, I do not mean to suggest no other factors were at work. As Teles has shown quite persuasively, the conservative legal movement mobilized successfully and had a significant influence in bringing law and economics approaches to law students, scholars, practitioners, and judges.[2] Indeed, the role the US Chamber of Commerce has been important in bringing more business cases before the Court, and in the probusiness outcomes on the Court. Moreover, it has been suggested that one of Roberts’s goals in assuming the chief justiceship was to try to reach more consensual decisions for the sake of legal stability and intuitional legitimacy, and to avoid fragmented controversial decisions.[3] It may be that business cases, especially statutory interpretation cases, involve less salient and more narrow or technical legal issues that evoke less ideological passion and result in more consensus on the Court. Moreover, in the area of statutory construction, a larger proportion of statutes or statutory provisions being interpreted by the Court today are likely to have been passed or amended by Congress during the New Right Regime by Republicans, usually during periods with a Republican president or a Republican Congress, or both. Hence, those provisions may well have been intended to be applied in a manner that might be considered business friendly. Additionally, during the New Right Regime politics have produced changes in regulatory activity, mass tort litigation, and securities litigation, among others. Clearly then, the mix of cases and substantive law that the Roberts Court has to choose from during the certiorari process is almost certainly different from earlier courts—but that is precisely what we would expect across political time. While it is most certainly true that some or all of these additional factors have probably contributed in some way to the increasingly probusiness orientation of the Roberts Court, the Court’s probusiness decisions are best understood as the culmination of a long issue evolution involving law and politics during the New Right Regime.

None of this is to say that the doctrinal analysis by my academic lawyer colleagues in this volume is not important. It is. It is almost certainly the case that not all of the Court’s decisions are as important or consequential as others in a juridical sense. Cases such as Bell Atlantic Corp. v. Twombly,[4] Ashcroft v. Iqbal,[5] and Jones v. Harris Associates[6] may have more significant long-term consequences for business than many other cases included in the aggregate analysis in this chapter. Indeed, despite the connections I have identified between Supreme Court decision making and politics, the Court’s doctrines influence lower decisions and may have path-dependent effects that shape future decisions. By creating new standards, the Court could be creating a new “jurisprudential regime” in which the new standards that constrain the decision making of future judges and justices.[7] Legal norms often change over time, as they have in business regulation areas such as antitrust law,[8] but those changing legal norms are closely connected to broader political change. My larger point that the Roberts Court’s overall business-friendly orientation as measured by aggregate outcomes could and should have been expected, and critics should not be surprised by legal changes that were prefigured by political changes and are part of a long-term trend related to those political changes.

  • [1] Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares in the Supreme Court,97 Minn. L. Rev. 1431 (2013).
  • [2] Teles, supra note 69.
  • [3] See Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries ThatDefined America (2006); Rosen, supra note 4.
  • [4] 550 U.S. 544 (2007).
  • [5] 556 U.S. 662 (2009).
  • [6] 559 U.S. 335 (2010).
  • [7] Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court DecisionMaking, 96 Am. Pol. Sci. Rev. 305 (2002).
  • [8] See, e.g., William E. Kovacic, The Modern Evolution of U.S. Competition Policy EnforcementNorms, 71 Antitrust L.J. 377 (2003).
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