The Supreme Court Is “Unreasonably Pro-Business,” But Not Because The Founders Wanted It That Way
Written by David Lyle
Published
On the Manhattan Institute's Point of Law blog, conservative lawyer Ted Frank notes his “impatience with the inaccurate myth that the Supreme Court is unreasonably pro-business." In support, he cites a forthcoming law review article by Michael Greve, John G. Searle Scholar at the American Enterprise Institute, who, in Frank's words, “goes farther: he persuasively argues that the Constitution effectively anticipated that the Supreme Court would be pro-business, and that is a good thing.”
In other words, according to Greve, the Founders not only established a charter for democratic government, under which the people's elected representatives would enact appropriate legislation, they also prospectively and irrevocably enacted the policy preferences of contemporary think tank libertarians. What an amazing coincidence!
As for Frank's view that the Roberts Court is not “unreasonably” pro-business, many thoughtful observers have concluded otherwise. A 2010 article by New York Times Supreme Court corespondent Adam Liptak on the increasing success the U.S. Chamber of Commerce is experiencing in cases before the Court found that:
The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber's side. One of the them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending.
The chamber's success rate is but one indication of the Roberts court's leanings on business issues. A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests.
The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953.
In its most recent term, the Roberts Court's conservative majority continued the trend, by handing major victories to AT&T and Wal-Mart in cases in which it greatly restricted the rights of consumers hit with unfair fees and victims of employment discrimination, respectively, to use the courts to seek compensation.