A Century of Business in the Supreme Court, 1920-2020

26 Pages Posted: 6 Aug 2022 Last revised: 28 Feb 2023

See all articles by Lee Epstein

Lee Epstein

University of Southern California

Mitu Gulati

University of Virginia School of Law

Date Written: February 26, 2023

Abstract

A decade and a half into its life, we ask: How pro business is the Roberts Court? Using a simple objective measure – how often does business win in the Court when it is fighting a non business – we find that the Roberts Court may be the most pro business Court in a century. The win rate for business in the Roberts Court, 63.4%, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3%). The question is why? It is tempting to conclude that this pro business result is purely a function of there being a Republican majority of justices on the Roberts Court. The data suggest that the story is more complex. Additional features that emerge from the data are: (a) It is not just the Republicans on the Roberts Court who are more pro business than in prior Courts, but the Democrats as well; (b) The Government, through the SG’s office and across both Democratic and Republican administrations, has been much more supportive of business positions than in prior eras; (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court.

Keywords: Supreme Court, Pro Business

JEL Classification: K20, K22

Suggested Citation

Epstein, Lee and Gulati, Mitu, A Century of Business in the Supreme Court, 1920-2020 (February 26, 2023). MINNESOTA LAW REVIEW HEADNOTE, Vol. 107, 2022, Virginia Public Law and Legal Theory Research Paper No. 2022-55, Virginia Law and Economics Research Paper No. 2022-16, Available at SSRN: https://ssrn.com/abstract=4178504 or http://dx.doi.org/10.2139/ssrn.4178504

Lee Epstein

University of Southern California ( email )

2250 Alcazar Street
Los Angeles, CA 90089
United States

HOME PAGE: http://epstein.usc.edu/

Mitu Gulati (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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