In his much-discussed New York Times Magazine article, Jeffrey Rosen claims that the Supreme Court has become "pro-business." Eric Posner has already dissected much of the very weak evidence on which Rosen's thesis is based. I would add that Rosen's thesis is undermined by his conflation of being "pro-business" with being pro-free market, and by the Court's reluctance to provide even minimal protection for constitutional property rights and economic liberties.

I. Pro-Market vs. Pro-Business.

Rosen, like all too many other analysts conflates being "pro-business" with being pro-free market. In reality, however, business interests often favor government intervention. For example, they are happy to support regulations that hobble their competitors, provide them with subsidies, protect them from foreign competition, and so on. Politically influential corporations such as General Motors also benefit when the government condemns property that they covet and transfers it to them. As I explained in this post, libertarian and conservative public interest law firms found themselves unable to pursue a pro-market litigation strategy until they reduced their dependence on corporate support - in part precisely because business interests often support government intervention. Thus, even if Rosen is correct in claiming that the justices reflect "an emerging spirit of agreement among liberal and conservative elites about the value of free markets," that would not necessarily be a "pro-business" agenda. It benefits some businesses, but also harms the interests of others.

In reality, however, there isn't much evidence of a pro-market tilt on the Court either. Much, of course, depends on the baseline you apply. If you believe that property rights and economic liberties deserve virtually no judicial protection at all, than even the modest degree of protection they receive from the current Court will seem like too much. That said, I think the evidence suggests that the Court is very far from being pro-market. Constitutional property rights remain mired in a "second class" status relative to other individual rights - a status reaffirmed in several recent decisions. Judicial protection for other economic liberties is even weaker than that.

II. The Continuing Second Class Status of Property Rights.

In the area of property rights, the Court held in Kelo that the government can condemn virtually any property it sees fit and transfer it to another private party. Contrary to Rosen's claims that the Court is more pro-market than public opinion, in this case public opinion overwhelmingly (80% plus) favored greater protection for property rights than the Court. Although the Court majority agrees that private property can only be condemned for a "public use," it leaves the definition of "public use" almost entirely up to the discretion of the very same government authorities who wanted to condemn the property in the first place. With the possible exception of the Second Amendment, no other part of the Bill of Rights has been so completely negated by wholesale judicial deference to the government.

In recent years, the Court has also made it easier for government to severely restrict property owners rights without having its actions be declared a taking under the Fifth Amendment and thereby without having to pay the "just compensation" the Amendment requires. In the 2002 Tahoe-Sierra case (won by John Roberts as the lawyer for the government) the Court undermined much of the limited increases in protection against "regulatory takings" that it had extended to property owners in the 1980s and 90s (Richard Epstein provides a good discussion of the case's impact here). Most recently, in Wilkie v. Robbins, the Court held that, even in cases where there is a clear violation of constitutional property rights, the victims are not entitled to remedies that are routinely available for violations of other individual rights protected by the Bill of Rights.

III. The Third Class Status of Economic Liberties.

As limited as is the Court's solicitude for property rights, it extends even less protection to economic liberties. With the possible exception of Justice Thomas, all of the justices support the view that "economic" regulations require only minimal "rational basis" scrutiny that in practice leads to judicial endorsement of even the most blatant special interest manipulations that restrict individual liberty in order to benefit politically powerful interest groups. This despite growing evidence compiled by co-blogger David Bernstein and other scholars indicating that the Fourteenth Amendment was intended to provide far more than minimal protection for economic freedom. Certainly, the Court's unwillingness to provide even a modest degree of protection for economic liberties contrasts sharply with its solicitude for "noneconomic" unemurated rights, such as the right to sexual autonomy, abortion rights, and the right to marry (which is protected even in the case of death row inmates).

Rosen may be right in so far as today's Court gives property rights slightly more protection than did its predecessors between the late 1930s and the 1980s. That period, however, was an extreme anomaly in which judicial protection for property rights was far weaker than at any other time in American history. As James Ely shows in his excellent history, The Guardian of Every Other Right, judicial protection for property was much stronger during the Founding era and most of the 19th and early 20th century. And, though property rights gained some modest ground in the 1980s and 90s, Supreme Court protection for other economic freedoms hasn't advanced beyond its post-New Deal nadir.