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

Minnesota Law Review Headnotes 107: 49-74 (2022)

Lee Epstein, University of Southern California
Mitu Gulati, University of Virginia

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.

Click here for the article
Click here for the data (dta. file)
Axios reported the results of study; and we wrote an op-ed in the Financial Times based on the data.