| Prof. Lee Epstein's research was recently featured in the New York Times, "Corporations Find a Friend in the Supreme Court." To read Adam Liptak's story, click here. |
“When you compare the Roberts’ Court to the Rehnquist and Burger Courts, overall decisions are only slightly more conservative,” Epstein and her colleagues write. “But business decisions — which often go unnoticed by the public — are far more favorable to corporations.”
One reason is that the public’s attitude toward business has shifted and become more understanding. At the same time, justices — including those appointed by Democratic presidents — have become more sympathetic to business interests.
For example, the New York Times reported that the Roberts’ Court has ruled in favor of big business in several high-profile cases in the past few years, including:
-rejecting limits on campaign donations made by corporations in Citizens United v. Federal Election Commission
-rejecting a class-action lawsuit last month against Comcast alleging that the company’s monopoly allowed it to unfairly raise prices (Comcast v. Behrend)
-blocking a sex discrimination lawsuit against Walmart in 2011, making it more difficult for future large-scale bias claims against big employers to reach the Supreme Court (Walmart stores v. Dukes).
Epstein, Posner and Landes also looked at the attitudes of individual justices toward business. The trio used data on the justices’ general ideological leanings to relate to votes they cast in previous business cases.
“One of our concerns has been the extent to which the pro-business trend has manifested itself in decisions by the Supreme Court and in votes of the individual justices [which are not the same thing],” the authors noted in the study.
The Court is taking more cases in which the business litigant lost in the lower Court and reversing more of those, the researchers found.
This gives rise to the paradox that a decision in which certiorari is granted when the lower Court decision was anti-business is more likely to be reversed than one in which the lower Court decision was pro-business. The Roberts' Court also has affirmed more cases in which business is the respondent than its predecessor Courts did, the researchers said.
“At the time of their nominations,” Epstein said, “several commentators noted that Roberts and Alito would be good for business. So far their prediction has turned out to be correct.”
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