The new study cited by Liptak is “How Business Fares in the Supreme Court” by Lee Epstein, William Landes, and Richard Posner, recently published in the Minnesota Law Review. In addition to concluding that the Roberts Court is more friendly to business interests than its predecessors, the study also concludes that Chief Justice Roberts and Justice Alito are more likely to vote in favor of business interests than any other justices to have served on the Court during the past 65 years. The other conservatives on the Court also rank in the top ten most business-friendly justices during this period.
The Epstein-Landes-Posner (ELP) study is certainly the most comprehensive examination of the Supreme Court’s handling of business-related cases in the post-New Deal era. But I am not sure that this study can really substantiate the claim that the Roberts Court is notably more “pro-business” than its predecessors or that current justices are any more sympathetic to business interests. The reason for this is that the methodology chosen by the study’s authors — determining whether a business interest won or lost in each case and then tallying up the decisions and individual justices’ votes — doesn’t account for the content of the studies or the doctrinal baseline. As a consequence, a more “pro-business” court may actually produce decisions that are less business-friendly than one the is deemed “anti-business.” Further, while the dataset used in this study is more comprehensive than that used in prior reports (including a prior study by these same authors) it still fails to account for classes of cases that could alter the results.