Think twice before calling the Supreme Court “pro-business”

A recent study deserves a second look

Is the current Supreme Court “pro-business?” That assertion has been made with increasing frequency, most recently in a New York Times article headlined “Corporations Find a Friend in the Supreme Court.”

The charge hearkens back to the time when the Warren Court was called “pro-defendant” because it frequently ruled in favor of criminal defendants in cases involving claims under the Fourth, Fifth and Sixth Amendments and “anti-religion” because of its interpretations of the First Amendment’s religion clauses. Then, as now, those unhappy with the court’s rulings depicted the court as an unprincipled, result-oriented institution—using the court as a foil to increase support for the critics’ political goals.

While a useful and interesting quantitative analysis, the new study thus says little or nothing about the overall jurisprudential effect of the court’s decisions.

Nonetheless, the New York Times article moves from a discussion of the study to the assertion by Professor Arthur Miller that the court’s “general track record” has been “decidedly pro-business,” with the supposed result that “businesses are free to run their operations without fear of liability for the harm they cause to consumers, employees and people injured by their products.”

Contributing Author

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Andrew Pincus

Andrew Pincus is a partner in Mayer Brown’s Supreme Court and Appellate practice. He focuses his practice on briefing and arguing cases in the Supreme...

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