The Roberts Court and economic issues in an era of polarization.

• Author: Pickeri, J. Mitchell
• Position: Symposium: Business in the Roberts Court

CONTENTS INTRODUCTION I. ASSESSMENTS OF THE ROBERTS COURT AS "PRO-BUSINESS" A. The Emergence of a Conventional Wisdom: The Roberts Court is Decidedly Pro-Business B. Detractors and Skeptics Question the Conventional Wisdom II. The Roberts Court and the Political Regime A. The Roberts Court and the "New Right Regime" B. The Regime and the Court in an Era of Divided Government and Polarization III. ANALYSIS CONCLUSION INTRODUCTION

Over the last decade, numerous scholars and commentators have labeled the Roberts Court as a "pro-business" Court. (1) There are various reasons why the label seemed to stick, such as the success rate of the U.S. Chamber of Commerce in the Court as well as anecdotal evidence based on particular cases. (2) In addition, systematic empirical evidence suggests that the Roberts Court has decided in favor of business litigants more frequently than under previous Chief Justices going back to at least the 1940s. (3) Despite the development of this conventional wisdom, some commentators question how pro-business the Court really is. (4) Various legal scholars have argued that when one actually analyzes the Court's doctrine, the impact for big business appears far less favorable/' Although we agree that close attention should be paid to doctrine and even different issue areas involving business and economics, we ultimately take a different approach. We draw from the "political regimes" (or "regime politics") in the political science literature on the Court to provide a more robust understanding of how it gradually became more business-friendly over time as a result of the influence of conservative politics, beginning long before John Roberts was installed as the seventeenth Chief Justice of the U.S. Supreme Court. However, while the Court lias been influenced by the predominant values of a "New Right Regime," it also reflects another key characteristic of the regime--division and polarization. (6) To show how these changes have occurred over time, we analyze cases based on the issue areas of economic regulation and labor union activity, as opposed to whether a business entity won or lost as a party to the case. Although this approach cannot tell us the doctrinal effects of the Court's decisions, it at least provides a general picture of whether the Court favors government regulation of the economy and unions on the one hand, and businesses and employers on the other.

In Part I, we review the assessments of the Roberts Court's orientation toward business to provide some context for the debate. First, we discuss the emergence of the conventional wisdom that the Roberts Court is pro-business, and then we briefly review the arguments of those who are skeptical of those claims. In Part II, we summarize the political regimes approach for understanding Supreme Court decisions and legal change in the Court. We also discuss how the politics of a "New Right Regime" have been influenced by conservativism, but at the same time are characterized by a long period of divided government and polarization. In Part III. we analyze data from the Supreme Court's decisions involving economic regulation and union activity from 1946 through the end of the 2015 term of the Supreme Court. We conclude that since the beginning of the Burger Court, the Court has increasingly voted in what might be called the "conservative" direction--i.e., against economic regulations and labor. Additionally, the Court frequently divides along both ideological and partisan lines in these cases, reflecting the regime in which is it situated.

1. ASSESSMENTS OF THE ROBERTS COURT AS "PRO-BUSINESS"

   In this Part we briefly summarize the emergence of a new conventional wisdom about the Court--namely, that it is decidedly probusiness. Just a few years after John Roberts assumed the Chief Justiceship, journalists and scholars were writing about what seemed to be a new pro-business disposition in the Court. Part I begins by reviewing some of those claims. In the last section of this Part, we consider some of the critics or skeptics of those claims.

   A. The Emergence of a Conventional Wisdom: The Roberts Court is Decidedly Pro-Business

   By now, the Roberts Court's reputation as a pro-business Court has become something like the conventional wisdom for Supreme Court scholars and commentators. In 2008, Jeffrey Rosen wrote an article titled Supreme Court, Inc. in New York Times Magazine. (7) Rosen argued that, whereas the Court had embraced a form of "economic populism" throughout most the latter half of the twentieth century, by the 2000s it had transformed into a decidedly pro-business venue. (8)

   A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism--or even outright prejudice. The economic populist William O. Douglas, a former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was "ready to bend the law in favor of the environment and against the corporations." (9)

   Today, however, as Rosen pointed out, "there are no economic populists on the court, even on the liberal wing." (10) In addition to quoting pro-business statements from members of the so-called liberal wing of the Roberts Court at the time, Rosen noted that, when compared to prior years, the proportion of cases involving business interests was up about ten percent during the early years of the Roberts Court. (11) Rosen also highlighted several cases involving antitrust law, corporate mergers, punitive damages, and product liability in which the interests of big business seemed to be faring well in the Court. (12)

   These cases didn't seem to split the Roberts Court along conventional ideological lines. In a 2009 law review article, Rosen reported that, when he asked Justice Stephen Breyer about the Court's probusiness orientation, "he did acknowledge that there might be a difference between constitutional cases, where Justices have strong preconceptions and philosophical commitments, and more technical, statutory cases, where they are more open-minded and amendable to argument." (13)

   Finally, Rosen explained the pro-business shift as a function of a decades-long effort by conservative and business groups to counter the effects of consumer groups and public interest litigation groups like Public Citizen. (14) In particular, he credited the U.S. Chamber of Commerce's lobbying efforts and the National Chamber Litigation Center, established in 1977, for advocating business interests in state and federal courts. (15) Various examples and statistics indicated that through filing amicus briefs on behalf of business interests, the Chamber was successful both in persuading the Court to grant certiorari and on the merits in particular cases.

   Although Rosen's article garnered much attention, he was not the only journalist or commentator claiming the Court was "probusiness." (16) For example, writing for Bloomberg Business, Michael Orey declared that the Roberts Court was "open for business." (17) And in an article in the Wall Street Journal, Brent Kendall explained that the Supreme Court is "making it easier for companies to defend themselves from the kinds of big lawsuits that have bedeviled them for decades." (18) Some legal academics agreed. For instance, Erwin Chemerinsky wrote that "the Roberts Court is the most pro-business Court of any since the mid-1930s." (19) All of this attention to the Roberts Court and its business decisions led to further academic research and scholarship examining whether and to what extent the Roberts Court could be considered "pro-business." (20)

   Much of the early characterization of the Roberts Court as "probusiness" has been based on specific Supreme Court decisions, such as Ledbetter v. Goodyear Tire & Rubber Co. (21) and Riegel v. Medtronic, Inc., (22) or specific Supreme Court terms, such as the 2006 term in which the U.S. Chamber of Commerce won in thirteen of the fifteen cases in which it had filed a brief. (23) Nonetheless, there have also been more systematic analyses of the Court and its disposition toward business interests. Lee Epstein, William Landes, and Richard Posner conducted one of the most well-known systematic empirical analyses of the Supreme Court and business interests. (24) In their study, Epstein, Landes, and Posner selected Supreme Court decisions from the 1946 term through the 2011 term of the Court in which a business entity was a litigant. (25) They analyzed the likelihood that business entities would prevail in the Court over time. (26) Controlling for numerous factors, they concluded:

   Whether measured by decisions or Justices' votes, a plunge in warmth toward business during the 1960s (the heyday of the Warren Court) was quickly reversed; and the Roberts Court is much friendlier to business than either the Burger or Rehnquist Courts, which preceded it, were. The Court is taking more cases in which the business litigant lost in the lower court and reversing more of these--giving rise to the paradox that a decision in which certiorari is granted when the lower court decision was antibusiness 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. (27) Thus, the Epstein, Landes, and Posner empirical study seems to confirm the conventional wisdom.

   B. Detractors and Skeptics Question the Conventional Wisdom

   Although there has been much commentary and analysis regarding the pro-business orientation of the Roberts Court, not everyone has jumped aboard the bandwagon. There are several different reactions to the conventional wisdom that the Robert Court is pro-business. For the sake of illustration, we consider just a few of those reactions here.

   Some resist the characterization of the Roberts Court as pro-business...