Is the Supreme Court “Pro-Business”?

Stephen Richer of Forbes has a good summary of the reasons why claims that the Supreme Court has a “pro-business” bias are misplaced. He also provides numerous links to articles and blog posts on both sides of the issue, including one by co-blogger Jonathan Adler.

I summarized my own thoughts on the issue in this 2010 post, which Richer also linked:

[M]ost… discussions of the issue… have two important weaknesses: failure to consider the underlying quality of the two sides’ arguments in “pro” and “anti” business decisions, and the use of a crude definition of what counts as pro-business…

[Adam] Liptak discusses at some length the result of a recent study showing that “business” interests won 61% of “economic” cases in the Roberts Court, compared to 46% during the last few years of the Rehnquist Court. But this proves the existence of a pro-business bias only if unbiased decision-making would have led to a lower win rate for business. What percentage of these cases would business have won if the judges were totally unbiased? How good were the legal arguments on each side? If, for example, business “deserved” to win 80% of these cases on the merits, then the 61% win rate would reflect an anti-business bias rather than a pro-business one.

During his tenure as head of the NAACP Legal Defense Fund in the 1940s and 50s, Thurgood Marshall won 29 of the 32 civil rights cases he argued in the Supreme Court. Was that because the Court was “biased” in favor of civil rights plaintiffs or because many state governments in that era abused civil rights so severely that it was easy for skilled litigators at the NAACP to find egregious instances of discrimination that were very hard to defend in court?…

The second problem with the arguments cited by Liptak is that they rely on a very crude definition of what counts as a “pro-business” decision. In general, they count any case where a business has prevailed on a regulatory, antitrust, employment, or environmental issue as “pro-business,” and the reverse as “antibusiness.” This approach has a variety of weaknesses…

One problem is that many such cases have business interests on both sides. For example, a victory for antitrust defendants is counted as “pro-business.” But most antitrust plaintiffs are businesses themselves who are suing their competitors, usually for the purpose of increasing their own profits. I don’t see any reason to assume that the plaintiffs in these cases are any less “pro-business” than the defendants…

Overall, the pro-business vs. anti-business frame is a lot less useful for understanding legal decisions than many people believe. Very few important legal issues pit an undifferentiated business interest against an undifferentiated consumer, employee, or “Main Street” interest. In most cases, some important business interests will gain and others will lose no matter which way the Court comes out.