Lee Epstein and Mitu Gulati report:
A decade and a half into its life, we ask: How pro business is the Roberts Court? Using a simple objective measure – how often does business win in the Court when it is fighting a non business – we find that the Roberts Court may be the most pro business Court in a century. The win rate for business in the Roberts Court, 63.4%, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3%). The question is why? It is tempting to conclude that this pro business result is purely a function of there being a Republican majority of justices on the Roberts Court. The data suggest that the story is more complex. Additional features that emerge from the data are: (a) It is not just the Republicans on the Roberts Court who are more pro business than in prior Courts, but the Democrats as well; (b) The Government, through the SG’s office and across both Democratic and Republican administrations, has been much more supportive of business positions than in prior eras; (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court.
Epstein, Lee and Gulati, Mitu, A Century of Business in the Supreme Court, 1920-2020 (August 3, 2022). Virginia Public Law and Legal Theory Research Paper No. 2022-55, Virginia Law and Economics Research Paper No. 2022-16, Available at SSRN: https://ssrn.com/abstract=4178504 or http://dx.doi.org/10.2139/ssrn.4178504
