Tomorrow I will be participating in the Santa Clara Law Review symposium on “Big Business and the Roberts Court: Explaining the Court’s Receptiveness to Business Interests.” Jeffrey Rosen, whose NYT magazine article “Supreme Court, Inc.” no doubt helped inspire the conference, will deliver the keynote address tomorrow afternoon. (We discussed Rosen’s article on the VC here.) Additional speakers include litigators and academics including Tracey George (Vanderbilt), Pam Karlan (Stanford), and Vikram Amar (UC Davis), among others.
In my remarks I will raise questions about what it means to say that the Roberts Court is substantively “pro-business,” and take a closer look at the various environmental cases decided by the Roberts Court. If the Court is meaningfully pro-business, one might expect that the Court would be hostile to environmental regulation or at least sympathetic to business challenges to regulatory measures. Yet no such tendency is visible in the environmental decisions rendered by the Roberts Court thus far. If there is evidence that the Roberts Court is “pro-business,” the evidence must be found elsewhere.
I addressed the broader claim that the Roberts Court is pro-business in Part III of my response to Erwin Chemerinsky’s article on the first three years of the Roberts Court. Chemerinsky argued that the Roberts Court has shown itself to be particularly pro-business, and here is a portion of my response.
Dean Chemerinsky is likely correct that, in important respects, the Roberts Court could be seen as