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Is the Business of the Court Business?

Sunday's New York Times Magazine featured an article by Jeffrey Rosen, "Supreme Court Inc." suggesting that there has been an "ideological sea change" on the Supreme Court in favor of business interests over the last several years.

A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was "ready to bend the law in favor of the environment and against the corporations."

Today, however, there are no economic populists on the court, even on the liberal wing. And ever since John Roberts was appointed chief justice in 2005, the court has seemed only more receptive to business concerns. Forty percent of the cases the court heard last term involved business interests, up from around 30 percent in recent years. While the Rehnquist Court heard less than one antitrust decision a year, on average, between 1988 and 2003, the Roberts Court has heard seven in its first two terms — and all of them were decided in favor of the corporate defendants.

According to Rosen, this change reflects an "elite consensus," but not necessarily the views of the nation's populace. This is an interesting argument for the author of a book on the Supreme Court called The Most Democratic Branch. It is also a bit curious to suggest that the Court is out of touch with the American public because it lacks Justices willing to "bend the law" in favor of interest groups that were unable to prevail through the democratic process.

Rosen's article has prompted substantial comment, including interesting posts by Jack Balkin and Larry Ribstein.

Rosen's article is interesting, but is it really all that accurate or insightful? Before answering that question, read Eric Posner's deconstruction of the Rosen's piece at Slate's new legal blog Convictions. After surveying the evidence Rosen marshals to make his case, Posner concludes:

the Supreme Court is not increasingly pro-business, but maybe it is increasingly pro-market, finally catching up to a change in the public mood that began in the Carter administration. To preserve the idea that its jurisprudence is "biased" in favor of business, rather than just sensible or reasonable or within the range of colorable legal argument or for that matter a long overdue reaction to its previous anti-business "bias," Rosen argues that maybe there are people out there who really are populist; he seems to think that the Supreme Court and elite, bipartisan opinion that (he acknowledges) it reflects are "biased" in favor of business because this populist sentiment no longer plays a role in its opinions. "Unbiased," in this view, is populist. But Rosen does not show that populism is on the rise; the fates of the two most populist presidential candidates, Huckabee and Edwards, suggest otherwise. Even if it were, it would be puzzling to argue that the Supreme Court should hold its finger to the wind and start ruling against businesses--indeed, should have started years ago, when this "pro-business" trend Rosen decries began--and if it doesn't, that must be because of "bias." The article boils down to the claim that the Supreme Court is biased in favor of business (that is, is excessivly pro-market) because it failed to anticipate, and today shows no inclination to heed, marginal populist sentiment that has made no inroad on electoral politics.

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