New York Times reporter Adam Liptak recently published an interesting article on the controversy over whether the Roberts Court is “pro-business.” The article is much more balanced and nuanced than the accompanying headline (which probably, as per usual practice, was not written by the author): “Justices Offer Receptive Ear to Business Interests.” Liptak cites a wide range of experts on both sides of the controversy (including co-blogger Jonathan Adler, who last commented on this issue here). He also explains some of the difficulties involved in trying to determine whether or not the Court has a “pro-business” bias.
Nevertheless, both the article and most other discussions of the issues still have two important weaknesses: failure to consider the underlying quality of the two sides’ arguments in “pro” and “anti” business decisions, and the use of a crude definition of what counts as pro-business.
I. A Pro-Business Bias Relative to What?
Liptak discusses at some length the result of a recent study showing that “business” interests won 61% of “economic” cases in the Roberts Court, compared to 46% during the last few years of the Rehnquist Court. But this proves the existence of a pro-business bias only if unbiased decision-making would have led to a lower win rate for business. What percentage of these cases would business have won if the judges were totally unbiased? How good were the legal arguments on each side? If, for example, business “deserved” to win 80% of these cases on the merits, then the 61% win rate would reflect an anti-business bias rather than a pro-business one.
During his tenure as head of the NAACP Legal Defense Fund in the 1940s and 50s, Thurgood Marshall won 29 of the 32 civil rights cases he argued in the Supreme Court. Was that because the Court was “biased” in favor of civil rights plaintiffs or because many state governments in that era abused civil rights so severely that it was easy for skilled litigators at the NAACP to find egregious instances of discrimination that were very hard to defend in court? The justices of that era really were sympathetic to Marshall and the NAACP, but it would be a huge mistake to underrate the nature of the cases he argued. Obviously, “business” is not an oppressed class in the sense that southern blacks were prior to the 1960s. But the vast size and scope of the modern regulatory state makes it easy for skilled business lawyers to find cases where regulators or lower courts have overstepped their authority. That may explain the impressive recent 68% success rate of the Chamber of Commerce, cited by Liptak. Like Thurgood Marshall, the Chamber’s highly competent lawyers try hard to pick winners and steer clear of losers.
None of the studies and experts Liptak quotes address this problem. In fairness, doing so would be difficult. The question of how various cases “should have” come out is itself debatable, with experts often disagreeing among themselves. But the issue is unavoidable if one wants to prove the presence of bias as opposed to merely show that some group won or lost X percent of its cases.
II. What Counts as a Pro-Business Decision?
The second problem with the arguments cited by Liptak is that they rely on a very crude definition of what counts as a “pro-business” decision. In general, they count any case where a business has prevailed on a regulatory, antitrust, employment, or environmental issue as “pro-business,” and the reverse as “antibusiness.” This approach has a variety of weaknesses, some of which I previously covered here and here.
One problem is that many such cases have business interests on both sides. For example, a victory for antitrust defendants is counted as “pro-business.” But most antitrust plaintiffs are businesses themselves who are suing their competitors, usually for the purpose of increasing their own profits. I don’t see any reason to assume that the plaintiffs in these cases are any less “pro-business” than the defendants.
Even in regulatory decisions where there are no business interests directly involved on one side of the case, there are often outside business interests who will benefit if the business litigant loses to the government or a private individual. For example, businesses often benefit from increased regulation that increases their competitors’ costs or makes it difficult for new entrants to come into the market. Increased regulation of the oil industry benefits businesses that produce other types of energy. Increased labor regulation often benefits big business at the expense of small businesses that compete with the larger firms (because big businesses can more easily deal with larger regulatory burdens). Sometimes, business interests are heavily affected by a decision even if none of the parties to a case were commercial firms. For example, Ricci v. DeStefano, the famous 2009 case where the Supreme Court curtailed affirmative action in employment testing, made life hard for many businesses by making it more difficult for them to use race-conscious measures to avoid Title VII disparate impact litigation. Yet none of those who claim that the Court displays a “probusiness” bias count Ricci as a pro-business decision.
Overall, the pro-business vs. anti-business frame is a lot less useful for understanding legal decisions than many people believe. Very few important legal issues pit an undifferentiated business interest against an undifferentiated consumer, employee, or “Main Street” interest. In most cases, some important business interests will gain and others will lose no matter which way the Court comes out.
The widespread contrary belief is mostly due to an unjustified conflation of “pro-business” with pro-free market or anti-regulatory outcomes (I previously criticized this error here, here, and here). Once one recognizes that there are many business interests that often benefit from greater regulation and many non-business interests that are often harmed by it, the pro- vs. anti-business model starts to collapse of its own weight.
UPDATE: Ted Frank makes some related points here.