The most pro-business Supreme Court ever

The current Supreme Court is the most pro-business of all time. That’s the clear message from an important new paper looking at court decisions between 1921 and 2020.

Why it matters: The past 70 years have seen the government broadly — not only the judiciary but also both the Democratic and Republican parties — embrace an increasingly business-friendly agenda.

  • The new data shows a degree of pro-business sentiment today far exceeding even the pre-Depression highs.

State of play: When the court heard a case featuring a business on one side and a non-business on the other, it found in favor of the business 83% of the time in 2020, and 63% of the time that John Roberts has been Chief Justice.

  • Historically speaking, the Supreme Court has only found in favor of businesses 41% of the time.
  • The paper’s authors — Lee Epstein, of Washington University in St. Louis, and Mitu Gulati, of the University of Virginia — collated their findings from the Washington University Supreme Court Database.

By the numbers: The six justices with the most pro-business voting records of all time are all sitting on the court right now. These six (Barrett, Kavanaugh, Gorsuch, Alito, Roberts, and Thomas) were each nominated by Republican presidents.

  • Justices nominated by Democrats can also be business-friendly. Elena Kagan, for instance, is pro-business 56% of the time, placing her higher on the list than Antonin Scalia.
  • The least business-friendly current justice, Sonia Sotomayor, still manages to rank 17th out of 57 justices. She finds in favor of business 48% of the time. The equivalent number for Earl Warren, who was chief justice during the more worker-friendly era of 1953 to 1969, is just 25%.

How it works: To some extent, the justices can be seen to be following the lead of the government.

  • When the government takes sides in these cases, it usually takes the business’s side. The Office of the Solicitor General opposed the business just 20% of the time while Roberts was chief justice. That’s down from a high of 58% under the Vinson court of 1946 to 1953.

Between the lines: While high-profile cases like Citizens United or Hobby Lobby garner most of the news coverage, the Roberts court has been particularly active when it comes to upholding arbitration clauses (in favor of corporations) and rejecting class actions in the securities industry (which companies invariably oppose).

  • Such quotidian rulings often do more to help the broad mass of US businesses than the politically relevant headline-grabbers do.

The bottom line: Expect the pro-business stance to continue for the foreseeable future, especially now that Republican-nominated justices constitute a 6-3 majority on the court.

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