Legal Commentary

Justice Breyer Rejects Theory of ?Pro-Business? Court

By Jonathan H. Adler

Bloomberg reports:

Justice Stephen Breyer rejected the notion that the U.S. Supreme Court has a pro-business slant and said the court doesn?t rule in favor of companies any more frequently than it has historically.

?I looked back,? he said in a Bloomberg Television interview in which he discussed his new book. ?I couldn?t find a tremendous difference in the percentage of cases. They?ve always done pretty well.?

This should not be surprising.  As I?ve blogged several times over (see, e.g., here, here, and here), the ?Roberts Court Is Pro-Business? hypothesis does not stand up well to scrutiny ? at least not without some refinement.  That is, the Court may have some tendencies that business likes ? such as a reluctance to expand or discover private causes of action or support for non-judicial dispute resolution mechanisms (e.g. arbitration, etc. ? but this is not the same as being ?pro-business.?  In some areas business concerns appear to be irrelevant, and there are plenty of other areas, including preemption, where the Court has been anything but a consistent friend of business.  In one of my areas, environmental regulation, the Court has appeared to be more pro-government than pro-business, a tendency that is only good for business so long as the regulatory agencies and Justice Department are sympathetic to business concerns.

Last month, the Center for Business Law & Regulation at CWRU hosted a workshop on ?Business Law & Regulation in the Roberts Court,? at which several authors ? Matt Bodie, Brian Fitzpatrick, Thom Lambert, and Adam Pritchard ? presented papers looking at various aspects of the Court?s business-related docket.  The proceedings are online (see links here).  Here also are some comments by Lambert, David Zaring (and here), and Stefan Padfield.

Full post as published by The Volokh Conspiracy on October 07, 2010 (boomark / email).