Is the Supreme Court “pro-business”? That’s a charge often made by the Court’s critics. The NYT reported “corporations find a friend in the Supreme Court” under Chief Justice Roberts is defined by its “pro-business” rulings and a NYT magazine feature dubbed the Roberts Court “Supreme Court Inc.”
I’ve been skeptical of this attack from the beginning. Of course the Roberts Court sometimes rules in favor of business groups or otherwise reaches conclusions that are amenable to business interests. But there are other cases – Massachusetts v. EPA, Wyeth v. Levine – that are anything but “pro-business” in their rationale or effect. So I assembled a group of legal scholars — initially for a roundtable symposium, and eventually for a book — to look at how the Roberts Court handles business cases a bit more closely.
The result is Business and the Roberts Court, just out from Oxford University Press (and available on Amazon). The collected essays consider the ways in which the Roberts Court can be fairly characterized as “pro-business,” and the ways in which it cannot. From these analyses, the picture that emerges is not one of a court that is concerned with business, as such, but one that has other doctrinal commitments that in some cases align with business interests, and in other cases do not. In other words, while the Court sometimes decides cases in ways that business likes, we shouldn’t call it a “pro-business court.”
Early comment on the book has been humbling. Former Solicitor General Paul Clement wrote that ”Determining whether the Roberts Court is a ‘business court’ requires going beyond superficialities and examining specific doctrines and cases. This volume does that brilliantly.” UCLA’s Professor Stephen Bainbridge (of the ProfessorBainbridge blog) said it’s an “outstanding book” that demands “ a place on the bookshelf of any lawyer, judge, or academic who cares about the relationship of law and business.” And SCOTUSBlog’s Tom Goldstein added ”Finally. We now have a collection of pieces from the leading scholars in the field that takes us beyond the rhetoric of the Roberts Court as ‘pro-business.’ It is an indispensable volume for anyone giving serious thought to these important issues.” I’m grateful for these comments, and hope that other readers of the book will concur with these assessments.