Business, the Roberts Court, and the Solicitor General: Why the Supreme Court's Recent Business Decisions May Not Reveal Very Much

Abstract

It has almost become cliche to call the Roberts Court a friend of American business. Nonetheless, especially during the 2007-2008 term, the Court has also handed down a number of decisions favoring plaintiffs (such as employees or consumers) at the expense of business litigants. One complication in drawing firm conclusions about the Roberts Court's approach to business issues is that the current group of Justices has served together for only three years. A more fundamental complication is that other explanatory variables - influences other than a decision's import for American businesses - are certainly at play. In this essay, we explore one such variable that may have been especially significant over the past three years: the content of the arguments presented to the Court by the Solicitor General. To do so, we present an empirical examination of the full universe of the Roberts Court's decisions affecting the interests of business from January 2006, when Justice Alito joined the Court, to January 2009. As a purely descriptive matter, we find that the Court tended to reach results favorable to business interests, and that it tended to adopt the positions urged by the Bush administration. But when those two positions diverged - most saliently, in cases where the United States and the United States Chamber of Commerce filed opposing amicus briefs - the Roberts Court overwhelmingly sided with the government. How are we to understand this pattern? Does it suggest that the Roberts Court is actually more pro-government than pro-business? Alternatively, does it reflect a meaningful moderation in the Court's sympathy for business interests? Or does it signify something else still? We suggest that the answer may be all or none of the above - in essence, that these decisions leave much unrevealed. Specifically, given the Bush administration's well-known reputation as a strong ally of business, its arguments against the interests of business likely carried a great deal of credibility with the Court. Consequently, decisions by the Roberts Court siding against business litigants, but in favor of the Solicitor General, may show only that the arguments of business litigants in those cases went beyond what the law could permit. At the same time, the Court's siding with the government in business cases may not illustrate the Solicitor General's influence per se as much as it reflects the general agreement between the Justices and the Bush administration on how best to resolve the legal questions at issue. Hence, the decisions may not tell us much about the Roberts Court's underlying attitudes towards business or the federal government-that is, whether, and the extent to which, it is enduringly "pro-business" or "pro-government."