Assessing “How pro business is the Roberts Court?” is both straightforward and complicated. Based on how business litigants fare in the Roberts Court versus non-business litigants over time, business does quite well. The win rate for business in the Roberts Court, 63.4 percent, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3 percent). While it may be tempting for many to conclude that the current pro business tilt is purely a function of a Republican majority of justices on the Roberts Court, as Lee Epstein (USC) and Mitu Gulati (Virginia) argue in a recent paper, A Century of Business in the Supreme Court, 1920-2020, “this is only the beginning of the story.”
Epstein and Gulati bring data from the Supreme Court Database to the question. Starting with the 11,121 orally argued cases resulting in a signed opinion or judgment between the 1920-2020 terms, their paper focuses only on those 4,070 cases (35,173 votes) in which business was the petitioner (appellant) or respondent (appellee). That is, they excluded cases in which business was on both sides of a legal dispute.
Their core findings defy conventional wisdom and inject important complicating wrinkles. What they find includes: “(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; and (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court.”