Has the Supreme Court Moved in a Pro-Business Direction?
According to Adam Liptak of the New York Times, the Court has recently tilted in a pro-business--i.e. conservative--direction. But our very own Richard Epstein says it isn't so.
Here is an excerpt of Liptak's recent front-page New York Times article about the Court:
A new study, prepared for The New York Times by scholars at Northwestern University and the University of Chicago, analyzed some 1,450 decisions since 1953. It showed that the percentage of business cases on the Supreme Court docket has grown in the Roberts years, as has the percentage of cases won by business interests.
The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953.
Writing this week in Defining Ideas, a new journal of the Hoover Institution, Epstein refutes Liptak's narrative. By relying on the empirical study alone to expound his argument, Liptak, Epstein argues, fails to account for historical context, among other things:
First, the critique that the Court is tilting right never sets the Supreme Court decisions in their larger, historical context. Anyone who takes a look at the pattern of litigation over the past 57 years has to be impressed with the complete transformation of the Supreme Court docket. During this period of time, Congress passed statute after statute expanding the power of government over business, both by direct regulation and by private lawsuits that have been authorized, expressly or by implication, under a raft of old and new regulatory statutes.
As late as 1965, there was no employment discrimination litigation, no class actions for damage suits, no environmental law, and no campaign finance limitations....
Today, the situation is quite different. To treat the Supreme Court as conservative requires that one look at its recent decisions in utter isolation from the powerful underlying trends in the statutory and common law. No matter how the Court decides the cases on its docket today, the scope of government power remains far greater than it was in the Warren, or even the Rehnquist Court. To be pro-business today does not carry the same meaning that it did in earlier periods, when the scope of regulation was in general so much narrower.
Let me give a concrete example. One area that has witnessed a relentless expansion of government power is drug regulation under the Food and Drug Administration ("FDA"). One of the FDA’s most notable power grabs came in the 1990s when the organization, under David Kessler, tried to classify tobacco as a drug, subject to FDA regulation, without bothering to ask what particular disease tobacco was intended to treat. The Supreme Court, writing through Justice Sandra Day O’Connor in 2000, rejected that improbable interpretation in the excellent decision for FDA v Brown & Williamson, to which Justice Stephen Breyer wrote a limp and over-literal dissent.
Perhaps the Court is deciding more cases in a pro-business direction, but that should be taken as a commentary on the expanding role of government in the private sector--and not on the Court's political make up.
What do you think? Should the Court's pro-business trend be interpreted as push-back against big government? Or do you think its rulings are motivated by political bias? Or is the story more complicated than either of these two explanations?
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