How Business Fares in the Supreme Court

Published in 2013. In the Minnesota Law Review 97: 1431-1472 (invited as Lead Article)

Lee Epstein
William M. Landes
Richard A. Posner

From the Introduction (footnotes excluded) 

A number of scholars, journalists, and at least one member of Congress claim that the current Supreme Court (the “Roberts Court”) is more favorable to business than previous Supreme Courts have been. Other commentators disagree, while acknowledging that the Roberts Court is “less hostile to enterprise than the Warren Court” was; one of these commentators calls Wyeth v. Levine, a decision that business lost, “one of the most significant decisions of the Roberts Court.” An intermediate position is that it may be too soon to assess “the Roberts Court’s responsiveness to American business,” in part because the Court tends to agree with the positions taken by the Solicitor General of the United States, who during the first several years of the Roberts Court was the appointee of a Republican President and so tended to support business. The debate raises the larger issue, which we address in this Article along with the issue of the relative pro-business orientation of the Roberts Court, of the role of ideology in decisions of the Supreme Court, a focus of our recent book on judicial behavior, though the book does not emphasize business cases...

The Article is organized as follows. Part I describes the databases we use to study the Court’s business decisions. Part II uses these databases to study the pattern over time of the Court’s pro- and anti-business decisions, the ideological implications of the pattern, and, related to ideology, the correlation between coding decisions as conservative or liberal and coding them as business wins or business loses. Part III analyzes the voting behavior of the individual Justices, as distinct from the Court’s actual decisions. We rank the Justices in terms of how favorable or unfavorable they are toward business, and relate each Justice’s leaning for or against business to his preappointment ideology, the lower-court decision in the cases the Justice voted on, the federal government’s participation in the case, and the filing of amicus curiae briefs for or against business. The conclusion summarizes our findings.

Click here for the article
Click here for an updated version of this article
Click here for the data (.dta) (this is an updated and corrected dataset) (no substantial changes in the results reported inthe original study)