March 20, 2013 – The professor and the U.S. Supreme Court analyst agreed on a number of points Tuesday in a debate at the University of Houston Law Center, but disagreed on the bottom line: Does the Roberts Court have a decided pro-business tilt?
Law Center Associate Professor Aaron Bruhl argued that a review of the court's record shows it generally favors business interests in broad structural cases concerning access to the litigation system and usually rules in the direction favored by the Chamber of Commerce. "It's not radical," he said during the lunch hour discussion sponsored by the Federalist Society, and it's not every case, but "something is going on."
"Why are we surprised?" he asked. "It's sort of like the pope being Catholic." Justices do have discretion in close cases to do what they think is best, he said, and the majority on the court today are Republicans. "Elections do have consequences," he said, adding if the court weren't pro-business, "I would say there is some dysfunction in our political process."
Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-in-Chief of the Cato Supreme Court Reviewat the Cato Institute, disagreed with Bruhl's assessment of the court, saying its decisions vary wildly, are frequently unanimous, and often defy even a simple definition of what constitutes "pro-business." Does it mean, he asked, that the court is pro-management, pro-stockholder, pro-market, anti-employee, anti-regulation? "It often just comes down to disagreeing with a specific decision," he said. How do you categorize the court when some decisions, for instance, might hamper corporations while helping small businesses. "It can be very confusing, Shapiro said. "A discussion of business bias is just like a discussion of activism, it depends on how it is viewed."
Justices bring their own ideology and legal theory into play when deciding cases, Shapiro said, and it is far from a "nefarious bias" for the "big guy against the little guy."
Bruhl and Shapiro agreed that affixing a hard and fast label to the court is too simplistic. Sometimes, they said, it is even hard to determine who benefits from a particular decision. Rather than categorizing the court, Bruhl said, it would be better to look at each decision to see if it is "good or bad and why."