Adam Liptak has an excellent article describing the findings of an important recent study by Lee Epstein, William Landes and Richard Posner. The bottom line of the study -- that the Roberts Court is substantially more pro-business than its predecessors, including the Rehnquist Court -- will not be surprising to most Court watchers, but it's useful to have further empirical data. A few more points:
- The Roberts Court is not only very pro-business, it is more likely to hear cases affecting business interests than its predecessors. Court observers tend to focus on votes on the merits, but given the control the modern Court has over its docket, its priorities also matter a great deal in terms of case selection.
- Part of the explanation for this is that the Court's current conservatives have mostly become more conservative. This trend continues, as Alito and Roberts are even more consistently pro-business than Scalia and Thomas. But another factor is that the modern Court does not have any equivalent of William Brennan or Thurgood Marshall. Stephen Breyer and Ruth Bader Ginsburg -- both of whom were pre-emptively approved by the Chamber of Commerce -- have much more pro-business voting records than Warren Court-era liberals.
- Another major factor here is the increasing mobilization of litigators serving business interests, part of the general phenomenon of conservative legal mobilization very well-documented in Steve Teles's book.
- The data about the votes cast in cases where the Chamber of Commerce files an amicus brief also provides more evidence for the increasing polarization of the Court under Roberts. Since 2006, the Court's conservative wing has become more conservative and its more liberal wing more liberal.
-- Scott Lemieux