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The myth of the pro-business Supreme Court (continued)

I've on several occasions expressed impatience with the inaccurate myth that the Supreme Court is unreasonably pro-business: December 2010; March 2011; June 2011; July 2011, etc.

A new must-read paper by Michael Greve, forthcoming in the Charleston Law Review, tackles the same issue. But Greve goes further: he persuasively argues that the Constitution effectively anticipated that the Supreme Court would be pro-business, and that is a good thing. The structure of the constitution, via the Commerce Clause, anticipated that the parochial interests of individual states would attempt to extract the marginal value of interstate commerce, and that the federal system and Supremacy Clause would act as a check on those anti-business instincts of individual states for the greater good of the nation as a whole. Thus, states would improperly fetter business; the Supreme Court, acting in its constitutional capacity, would act to prevent these infringements on interstate commerce; the result would be a Court that is "pro-business" by the improper metric of counting noses for votes for and against business in individual cases. But today's Supreme Court falls far short of that constitutional and federalist ideal:

Upon inspection, the notion that the Roberts Court's jurisprudence heralds a restoration of unbridled capitalism--or, more modestly, of reliable rules of the road for commercial actors--proves untenable, if not downright absurd. It is true that the Supreme Court often rules for business. And this past Term, unlike in preceding years, those rulings have often been the work of a narrow 5-4 or 5-3 conservative majority. ... However, the pattern is hardly unbroken. Moreover, and far more important, the conservative Justices' pro-business decisions look like picking weeds in downtown Detroit or for that matter Mrs. Rand's crumbling New York--well-meant, but unlikely to improve the neighborhood on a lasting basis.

Update: Welcome Media Matters readers. I have responded to Mr. Lyle's snark.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.