By Lee Epstein, William M. Landes, & Richard A. Posner. Full text here.
A number of scholars, journalists, and at least one member of Congress claim that the current Supreme Court (the “Roberts Court”) is more favorable to business than previous Supreme Courts have been. Other commentators disagree, while acknowledging that the Roberts Court is “less hostile to enterprise than the Warren Court” was; one of these commentators calls Wyeth v. Levine, a decision that business lost, “one of the most significant decisions of the Roberts Court.” An intermediate position is that it may be too soon to assess “the Roberts Court’s responsiveness to American business,” in part because the Court tends to agree with the positions taken by the Solicitor General of the United States, who during the first several years of the Roberts Court was the appointee of a Republican President and so tended to support business. The debate raises the larger issue, which we address in this Article along with the issue of the relative pro-business orientation of the Roberts Court, of the role of ideology in decisions of the Supreme Court, a focus of our recent book on judicial behavior, though the book does not emphasize business cases.
In assessing the role of ideology in the Supreme Court, there is value in looking at a subset of cases, such as business cases. For there is no uniform conservative or uniform liberal ideology. Instead there are multiple imperfectly overlapping ideologies. For example, “Cold War liberals” (the standard example was Senator Henry Jackson of Washington; another was Justice Abe Fortas) are liberal in all respects except national defense and (sometimes) internal security. Libertarians are hostile to government in all respects, and therefore are conservative in business cases but liberal in most other cases. Social conservatives may be liberal with respect to the regulation of business but conservative in all other respects; that is, they may be pro-regulation across the board. Such differences can make it difficult or even impossible to distinguish between “liberal” and “conservative” Justices. However, it should be possible (and we endeavor in this Article) to distinguish between business-liberal and business-conservative Justices.
The Article is organized as follows. Part I describes the databases we use to study the Court’s business decisions. Part II uses these databases to study the pattern over time of the Court’s pro- and anti-business decisions, the ideological implications of the pattern, and, related to ideology, the correlation between coding decisions as conservative or liberal and coding them as business wins or business loses. Part III analyzes the voting behavior of the individual Justices, as distinct from the Court’s actual decisions. We rank the Justices in terms of how favorable or unfavorable they are toward business, and relate each Justice’s leaning for or against business to his preappointment ideology, the lower-court decision in the cases the Justice voted on, the federal government’s participation in the case, and the filing of amicus curiae briefs for or against business. The conclusion summarizes our findings.