President Calvin Coolidge, in a January 1925 speech to newspaper editors, asserted, “the chief business of the American people is business.” The claim, although far from true, did capture the short-lived success of business leaders in structuring the country’s social institutions for the benefit of the wealthy.
Tragically, we appear well into another period when business needs and desires are promoted as consistent with American values and enshrined into law. The pro-business orientation of the current Supreme Court, led by Chief Justice John G. Roberts, Jr., highlights this reality. As Lee Epstein and Mitu Gulati show in their paper titled, "A Century of Business in the Supreme Court, 1920-2020", “the Roberts Court may be the most pro-business Court in a century.”
The data
The authors use the Supreme Court Database, considered to be the definitive source on the Supreme Court and its decisions, for their study. For the years 1920-2020, the focus of their work, the authors found 11,121 orally argued cases that resulted in a signed opinion or judgment by the Court. A business was a named party on one side or both sides in 43% of those cases. Removing cases when both parties were businesses left 37% of the decided cases, or 4,070 cases. These were the cases Epstein and Gulati used to examine the business orientation of the Supreme Court.
The record
Epstein and Gulati found that businesses won 41% of their cases over the entire 100-year period of their study. Designating Court eras by their chief justice, the business success rate hit a low of 29.4% during the Warren Court (1953-1968) and then began to climb, with a big jump to 63.4% for the Roberts Court (2005-2020).
The Taft Court (1921-29) held the record as the most business-friendly Court for decades, and it was well-earned. As the authors note, “the Taft Court ... invalidated more laws ‘than in (50) years preceding’ — most of which were attempts by government to rein in business.” But the Roberts Court appears determined to surpass it. In fact, the Roberts Court stands out as “the first Court in the last 100 years that rules in favor of business more often than not” when considering a case where business is opposed by a nonbusiness entity or individual.
The 63.4% win rate for business during the Roberts Court is 15 percentage points higher than the highest previous rate recorded by any Supreme Court over the past century. However, that win rate is only the average over the Roberts Court’s many terms. A term-by-term examination shows that the Roberts Court is actually growing ever more business friendly. For example, the business win rate was 53% in 2005, 62% in 2010, 79% in 2016 and a record 83% in 2020.
What’s going on?
The authors consider four explanations for the business-friendly orientation of the Supreme Court, especially the Roberts Court: The justices’ partisanship, reduced government activism, more experienced corporate counsels and public opinion. In terms of partisanship, their own work, as well as that of others, establishes that Republican-appointed judges are more likely to favor business than Democratic-appointed judges. For example, their regression results show “that Republican appointees are about seven percentage points more likely to vote in favor of business than Democrats — a statistically significant difference.”
But that result masks a more striking political development. While Republican appointees on the Roberts Court voted in favor of business at a far higher rate than Republican appointees in previous Courts, Democratic appointees on the Roberts Court are also far more favorable to business than Democratic appointees in previous courts. In fact, these Democratic appointees voted on the side of business in 50% of the cases, a higher percentage of pro-business votes than Republicans made during all previous Court eras except one. In other words, the Supreme Court’s embrace of business cannot be explained simply by party labels; both Republican and Democratic leaders are selecting business-friendly justices.
The authors also found evidence suggesting that a drop off in federal legal interventions and more experienced corporate legal representation help to explain the high and rising business success rate. For example, the success rate for business is far lower when the federal government — specifically, the Office of the Solicitor General (OSG) — is its opponent. However, the percentage of business cases in which the OSG is also a party has been dramatically falling. In other words, the federal government appears less interested in challenging cases involving business. As for expert corporate counsel, the authors found that lawyers with past experience before the Court have a higher success rate than first-timers, and business has significantly increased its use of more experienced lawyers.
Public opinion definitely cannot explain the Court’s pro-business trend. Multiple surveys show declining confidence in, and support for, business by self-identified Republicans, Democrats and independents. Thus, it is hard to make the case that the pro-business trend in Supreme Court decisions is a response to a rising tide of business approval by the public.
What next?
The Taft Court shows the likely trajectory of the Roberts Court. The Taft Court justified its pro-business rulings with doctrines that fit its ideological orientation. One example was its use of the so-called Lochner doctrine, which drew its name from a 1905 case, Lochner v. New York. In that case, the court struck down a New York statute that forbade employment in a bakery for more than 60 hours per week and 10 hours per day, arguing that the regulation interfered with the right of contract between the employer and employee. In other words, starting from the idea that employers and workers should each be each equally free to enter into, or refuse to enter into, contracts with each other, the Taft Court found it appropriate to rule against social regulations that interfered with individuals negotiating their own work-related contracts, and this included minimum wage laws and child labor restrictions as well as maximum hour regulations.
It is quite easy to imagine the Roberts Court seizing on a similar Lochner-era understanding to challenge many of the social regulations won by working people after years, if not decades, of struggle. It is this kind of process that helps business remake America for business. In its last term, the Court restricted the Environmental Protection Agency’s ability to tackle climate change and the Occupational Safety and Health Administration’s power to limit the spread of the coronavirus in the workplace.
So, where does that leave us? With life-time appointments, we are faced with a pro-business Court for years. Moreover, given the pro-business orientation of many of the past Democratic appointees to the Supreme Court, we cannot count on relief down the road simply from voting for Democratic politicians. At present, it seems we have little choice but to raise a ruckus and do our best to help people understand that the Court is no objective interpreter of existing laws; rather, it actively constructs the law according to its own business-friendly political vision. According to a Gallup poll taken in June 2022, before the Court overturned Roe v. Wade, only 25% of respondents said they had a high degree of confidence in the institution. That number is down from 50% in 2001. If public anger and class awareness continue to grow, the Court may well be forced to stay its hand.
Street Roots is an award-winning weekly investigative publication covering economic, environmental and social inequity. The newspaper is sold in Portland, Oregon, by people experiencing homelessness and/or extreme poverty as means of earning an income with dignity. Street Roots newspaper operates independently of Street Roots advocacy and is a part of the Street Roots organization. Learn more about Street Roots. Support your community newspaper by making a one-time or recurring gift today.
© 2022 Street Roots. All rights reserved. | To request permission to reuse content, email editor@streetroots.org or call 503-228-5657, ext. 404