Business and Judicial Bias

At the volokhconspiracy, Jonathan Adler takes shots at a law review study by Lee Epstein, William Landes, and Richard Posner, purporting to document the Roberts Court’s unprecedented pro-business bias. The study was reported in a New York Times piece by Adam Liptak. After noting significant methodological flaws in the study (which, admittedly, I haven’t read yet but which seems just as shoddy as the “judicial behavior” literature in general), Adler comments:

Quantitative studies of the Supreme Court’s behavior can be illuminating, but they only go so far, and they have a difficult time accounting for the actual impact of the Court’s decisions.  Not all cases are created equal.  A single case, such as Massachusetts v. EPA (or Wyeth v. Levine, to note another significant business loss in the Roberts Court), may be more significant than a half-dozen cases in which differently aligned interests prevailed.  Ultimately, if one wants to know whether the Court is more or less friendly to business (or any other interest) one should look at the doctrinal result of the Court’s decisions.

My sentiment exactly. Let me add this:

It would not occur to the quant geniuses to code civil rights decisions as “pro-“ or “anti-black,” or civil liberties cases (e.g., search and seizure, death penalty, Confrontation Clause) as “pro-“ or “anti-criminal (killer, child molester).” There, the bean counters go to the norm, not the constituency. When it comes to “business,” they count and write as if there were no norm.

On that theory, every antitrust case that’s won by a defendant counts as “pro-business.” Never mind that under modern antitrust law, business can’t win unless it shows that its practices were pro-consumer, or at least not detrimental to consumer welfare. No one would suspect Lee Epstein of recognizing the difficulty, but Richard Posner?

Or consider such constitutional norms as the Privileges and Immunities Clause (Art. IV Sec. 2) or the Contract Clause (Art. I Sec. 10): they protect commerce and private orderings, presumably for the good of all. But they’ll be enforced mostly by economic actors. In the quant world, the principles fall away, and every successful enforcement action—if such actions could be brought, which by and large they can’t—would count as simply “pro-business.”

I am entirely open to the suggestion that the Supreme Court often does look to constituencies rather than norms. For my part, I can’t explain the Court-created edifice of sex discrimination (including abortion) any other way. Similarly, it’s plausible to argue that in commercial cases, the contemporary Court is looking away from constitutional norms (which it is no longer willing to enforce) and towards hand-crafted doctrines to serve to protect commercial actors. (This had better be plausible; it happens to be my view. See The Upside-Down Constitution.)  All that, though, requires a careful examination of empirics and doctrine. To simply assume effectively norm-free constituency orientation in one context (but not others) is a category error in service of a preconceived result.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

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