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Not quite business as usual for Supreme Court justices

The study conducted by USC Provost Professor Lee Epstein and colleagues was published in the Minnesota Law Review. (Photo/Roger Snider)

The U.S. Supreme Court’s current assemblage of justices is more business-friendly than any Supreme Court since World War II, according to a new study by Lee Epstein, USC Provost Professor of Law and Political Sciences, and colleagues at the University of Chicago.

After analyzing more than 2,000 decisions over the past 65 years, Epstein found that five justices now serving on Chief Justice John Roberts’ court are among the 10 most pro-business justices since 1946. Roberts and Justice Samuel Alito Jr. are at the top of that list.

The study, conducted by Epstein, holder of the Rader Family Trustee Chair in Law at USC, Judge Richard Posner and William Landes of the University of Chicago, was published in the April edition of the Minnesota Law Review.

“When you compare the Roberts’ court to the Rehnquist and Burger courts, overall decisions are only slightly more conservative,” Epstein and her colleagues wrote. “But business decisions — which often go unnoticed by the public — are far more favorable to corporations.”

One reason is that the public’s attitude toward business has shifted and become more understanding. At the same time, justices — including those appointed by Democratic presidents — have become more sympathetic to business interests.

For example, The New York Times reported that the Roberts’ court has ruled in favor of big business in several high-profile cases in the past few years, including:

• rejecting limits on campaign donations made by corporations in Citizens United v. Federal Election Commission
• rejecting a class-action lawsuit last month against Comcast alleging that the company’s monopoly allowed it to unfairly raise prices (Comcast v. Behrend)
• blocking a sex discrimination lawsuit against Walmart in 2011, making it more difficult for future large-scale bias claims against big employers to reach the Supreme Court (Walmart stores v. Dukes).

Epstein, Posner and Landes also looked at the attitudes of individual justices toward business. The trio used data on the justices’ general ideological leanings to relate to votes they had cast in previous business cases.

“One of our concerns has been the extent to which the pro-business trend has manifested itself in decisions by the Supreme Court and in votes of the individual justices [which are not the same thing],” the authors noted in the study.

The Supreme Court is taking more cases in which the business litigant lost in the lower court and reversing more of those, the researchers found.

“This gives rise to the paradox that a decision in which certiorari is granted when the lower court decision was anti-business is more likely to be reversed than one in which the lower court decision was pro-business. The Roberts court also has affirmed more cases in which business is the respondent than its predecessor courts did.”

“At the time of their nominations,” Epstein said, “several commentators noted that Roberts and Alito would be good for business. So far their prediction has turned out to be correct.”

To read the story The New York Times, visit


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