Bench Memos

The Myth of a Pro-Business SCOTUS

Richard Epstein, on the Supreme Court’s alleged big-business bias:

I do not want to be construed as an apologist for big business, but I do think that the current anti-business rhetoric seriously misstates the relevant issues. Commentators could just as easily denounce the four liberal justices as anti-business apologists for big government. But that transparent ploy suffers from the same three defects as the usual attacks on the Supreme Court: selection bias; misplaced significance; and failure to account for the importance of consistently taking the ex ante perspective. . . .

The key point to remember here is that no judge should think that either pro- or anti-business sentiments define the proper attitude toward Supreme Court adjudication. The question is which decision from the ex ante perspective advances overall social welfare—and by that standard the vocal critics of the current conservative majority come off second best.

Read the whole piece.  

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