Essay: A Century of Business in the Supreme Court, 1920-2020
Lee Epstein, University of Southern California (now at Washington University in St. Louis)
Mitu Gulati, University of Virginia

Minnesota Law Review Headnotes 107: 49-74 (2022)
Click here for the article
Click here for the data (dta. file)

Abstract
A decade and a half into its life, we ask: How pro business is the Roberts Court?  Using a simple objective measure – how often does business win in the Court when it is fighting a non business – we find that the Roberts Court may be the most pro business Court in a century.  The win rate for business in the Roberts Court, 63.4%, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3%).  The question is why?  It is tempting to conclude that this pro business result is purely a function of there being a Republican majority of justices on the Roberts Court.  The data suggest that the story is more complex.  Additional features that emerge from the data are:  (a) It is not just the Republicans on the Roberts Court who are more pro business than in prior Courts, but the Democrats as well; (b) The Government, through the SG’s office and across both Democratic and Republican administrations, has been much more supportive of business positions than in prior eras; (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court.

We also wrote an op-ed in the Financial Times based on the data.

keywords: pro-business court, U.S. Supreme Court, Roberts Court, business litigation, judicial partisanship, corporate rights, business regulation, empirical judicial analysis, judicial decision-making, corporate counsel influence.