The Roberts Court and Business

by Ed Whelan

Yesterday’s New York Times also had a long article on the Roberts Court and business issues that was more interesting and more balanced than its title (“Justices Offer Receptive Ear to Business Interests”) and opening might suggest. Among other things, the article explores, as a possible explanation for the “recent successes of business interests in the Supreme Court,” the “rise of specialized practice groups at major law firms led by veterans of the solicitor general’s office.”

The article also discusses a new study (titled “Is the Roberts Court Pro-Business?) by law professor/political scientist Lee Epstein, economist William Landes, and Seventh Circuit judge Richard Posner that finds a statistically significant difference in the success of business interests during the first five years of the Roberts Court versus the preceding five years of the Rehnquist Court.

Hilariously, the muddled minds at Media Matters imagine that this new study shows that the Roberts Court is “tilted” in favor of business. But I see nothing in the study that purports to conclude that the statistically significant difference that it finds signifies that the Roberts Court is biased in favor of business. Other possible explanations of the difference include (1) that the Roberts Court is deciding more cases correctly, and (2) that the “rise of specialized [Supreme Court] practice groups at major law firms” is leading to a more thorough identification and review of lower-court cases that were wrongly decided against business interests.

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