[Jonathan H. Adler] In search of the ‘pro-business’ court

Has the Roberts Court been a pro-business court? Many commentators think so, but (as I’ve blogged many times before) I am not so sure. My new book, “Business and the Roberts Court” (that I previewed here), provides a critical perspective on the “Roberts Court is pro-business?” thesis, and suggests answering the question requires doing more than simply tallying business wins and losses or focusing on a small handful of cases.

Here’s how I answer the question “Is the Roberts Court pro-business?” at the close of the book’s introduction:

Is it fair to call the Roberts Court “pro-business”? Looking at the broader pattern of cases, there is little evidence that the Court, or any of the justices, are motivated by a desire to help business, as such. There have been too many Roberts Court decisions in which the business community generally, and big business in particular, has lost big to support such a claim. But there are many justices on the Court who have doctrinal or jurisprudential commitments, such as a suspicion of policy-making through litigation, that often work to the business community’s advantage. So while there is little evidence the Court seeks to help business, as such, there are aspects of the Court’s dominant jurisprudence that work to the advantage of business interests.

To the extent the Roberts Court is pro-business, it is so not because it has embraced an aggressive agenda to impose constitutional constraints on the government’s power to regulate economic activity or to rewrite the law to favor business interests. Rather, the Roberts Court can be called “pro-business” insofar as it is sympathetic to some basic business oriented legal claims, reads statutes narrowly, resists finding implied causes of action, has adopted a skeptical view of antitrust complaints, and does not place its finger on the scales to assist non-business litigants. This approach is highly deferential to the political branches, particularly the legislature, and will produce “pro-business” results only insofar as the other branches adopt or maintain relatively business-friendly postures. With a more interventionist Congress or less sympathetic Solicitor General’s office, this approach might not be “pro-business” at all.

Where business interests seek outcomes that are in line with the justices’ doctrinal commitments, they can expect to prevail. Yet where business interests are unable to marshal arguments that appeal to the justices’ underlying judicial philosophies, their odds are less favorable, no matter how much business groups may believe is at stake. So rather than say this is a Court that is “pro-business,” it is more accurate to say that this is a Court that business likes — except when it doesn’t. Whether or not one concurs with this assessment, this volume should make clear that the Court’s tendencies in business-related cases are not easily reduced to a hashtag slogan.

The book contains chapters by 10 different authors, and I don’t claim that every chapter author necessarily shares my assessment. Each author is well regarded in their field, and I think each of their assessments is worthy of serious consideration. Here’s my summary of the various contributions to the book, taken from the introduction:

Since John Roberts was confirmed as the seventeenth Chief Justice in 2005, the Court has handed the business community its share of victories, but it has also handed business groups substantial losses. While raising the formal bar for filing many lawsuits, upholding broad arbitration clauses, and rejecting new avenues of class-action litigation against large corporations,  the Court has also refused to preempt litigation against drug makers or block state immigration laws penalizing businesses that hire undocumented workers, and unleashed the federal regulation of greenhouse gases by the U.S. Environmental Protection Agency. These are hardly outcomes favored by big business.

Evaluating whether this is a pro-business record requires more careful analysis than simply tallying the cases or looking to see whether a business group was involved. It is necessary to step beyond the easy label and think carefully about what it means to say a court is “pro-business” and unpack the consequences such an orientation may have. Quantitative analyses have their place, but a complete picture requires careful qualitative assessments as well.

Several empirical studies suggest the Roberts Court is particularly