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The current Supreme Court could be the most pro-business yet


How business friendly is the current Supreme Court? According to a new study - very. And the reasons why go beyond just who is sitting on the court. Adrian Ma and Wailin Wong from our daily economics podcast The Indicator explain.

WAILIN WONG, BYLINE: Mitu Gulati is a law professor at the University of Virginia, and for Mitu's latest research project, he and fellow law professor Lee Epstein wanted to see if they could quantify the court's decisions and detect a trend.

MITU GULATI: We just boiled down the cases to their simplest bottom line - who won?

ADRIAN MA, BYLINE: So what they did was pull data on every Supreme Court case between 1920 and 2020, and they looked specifically at cases involving a business on one side and a nonbusiness on the other. And then they just added up the number of times the business came out on top.

GULATI: Many people find this kind of analysis very irritating. But if we do reduce the cases down to the bottom-line numbers, we see that the court that we have now is by far the most pro-business court in the last hundred years.

MA: So what is going on here? Mitu and his co-author have three theories. The first theory has to do with the kinds of cases the court is actually not seeing much of these days, and that is a business facing off against the U.S. government over some law or regulation. Mitu says justices have historically been 10% more likely to rule against a business if the government is on the other side. But since fewer of those cases are making it to the docket, that sort of helps burnish the win-loss record for businesses.

WONG: The second factor, Mitu says, is that when you look at the voting records of the justices in recent years, they're more pro-business than judges in previous decades.

MA: So for starters, Mitu says consider the records of the Republican-appointed judges who are serving on the court. According to Mitu's analysis, these justices, they sided with businesses over nonbusinesses 60 to 90% of the time.

WONG: And when you look at the record of Democratic appointees, Mitu says they weren't quite as business friendly as their colleagues, but they still sided with businesses about half the time.

MA: But there's one third and final factor Mitu points to that seems to be tipping the scales in favor of business, and that is high-powered attorneys.

GULATI: There has developed this elite Supreme Court bar.

WONG: A few decades ago, Mitu says maybe 30% of businesses before the Supreme Court hired a lawyer with prior Supreme Court experience. But in recent years, that figure has been closer to 80%.

MA: So to recap, you've got fewer cases with the government opposing businesses. You've also got justices who are also more pro-business. And you've got more of these super lawyers out there making the case. Mitu says, for him, this is a little worrying because the cases that the court hears, these are not, like, obvious calls. They could kind of go either way, depending on your point of view.

GULATI: What the court does in deciding those close cases is deciding which way legal doctrine goes.

MA: Mitu says, one decision at a time, cases like these do shape the business landscape. As a result, they also shape the economy, the economy that we all live in.

WONG: Wailin Wong.

MA: Adrian Ma, NPR News. Transcript provided by NPR, Copyright NPR.

Adrian Ma
Adrian Ma covers work, money and other "business-ish" for NPR's daily economics podcast The Indicator from Planet Money.