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The Retired Investor: The Supreme Court Loves Business

By Bill SchmickiBerkshires columnist
Over the past seven decades, the U.S. government has embraced business. Both political parties and their leaders have continued and expanded a broad, business-friendly agenda. However, the judiciary tops the list when it comes to ruling in favor of American business.
 
In fact, the current Supreme Court of the United States (SCOTUS) appears to top the tape in handing down favorable decisions to corporations and small business, according to a research paper by the Virginia Public Law and Legal Theory Research. The authors, Lee Epstein of the University of Southern California, and Mitu Guli at the University of Virginia School of Law compared the last decade and a half of Justice John Roberts' court rulings. Businesses won a lot more cases than they lost. The authors concluded it may well be the most pro-business Supreme Court in the last century.
 
Historically, SCOTUS has only ruled in favor of businesses 41 percent of the time. In the Roberts Court, however, that number shot up to 83 percent  in 2020, and 63 percent  since John Roberts assumed the role of Chief Justice.
 
If you look at the makeup of the court right now, six justices with the best record for supporting businesses in their voting habits were nominated by Republican presidents. That list includes Clarence Thomas, Samuel Alito, Brett Kavanaugh, Amy Barrett, Neil Gorsuch, and John Roberts.
 
However, that does not mean that Democrats' appointees are anti-business. Elena Kagan, for example, has a better pro-business record than Antonin Scalia. Sonia Sotomayor ranks last of the justices at 48 percent in favor of business but that is still above the historical averages. The areas in which the Court has actively ruled in favor of business are in the realm of upholding arbitration clauses and denying class-action suits in the securities sector.
 
The study found that there were several factors that may be influencing the justices' decisions in coming down on the side of business. Government, for example, has a strong influence on the court's decisions. When the Solicitor General, whose office represents the Federal government in front of the Supreme Court, takes an interest in a case, the court listens.  It just so happens that the Solicitor General has rarely (20 percent of the time) opposed business interest during the Roberts Court and neither has the Court.
 
Over the last few years, there has also been a change in who pleads the case of businesses in front of the Court.  A small, but savvy group of elite attorneys with extensive experience before the Court, are now representing business 77 percent of the time. That compares to just 25 percent of business attorneys during the Burger Court between 1969 and 1985, when voting in favor of business was much less common. And whether a justice was appointed by a Republican or a Democrat, they were more likely to vote in favor of businesses represented by a SCOTUS-experienced lawyer.
 
It is a common belief that through the years, SCOTUS had done a fairly good job tracking public sentiment. However, in the case of business, while public opinion toward business has soured, the courts' decisions have gone the other way since the 1960s. Recently, the Court seems to be willing to ignore, or in some cases, even go in the opposite direction of prevailing public sentiment.
 
In any case, given that the Republican-nominated justices represent a six to three majority on the court, businesses can continue to count on even more favorable rulings in the years ahead.   
 

Bill Schmick is the founding partner of Onota Partners, Inc., in the Berkshires. His forecasts and opinions are purely his own and do not necessarily represent the views of Onota Partners Inc. (OPI). None of his commentary is or should be considered investment advice. Direct your inquiries to Bill at 1-413-347-2401 or email him at bill@schmicksretiredinvestor.com.

Anyone seeking individualized investment advice should contact a qualified investment adviser. None of the information presented in this article is intended to be and should not be construed as an endorsement of OPI, Inc. or a solicitation to become a client of OPI. The reader should not assume that any strategies or specific investments discussed are employed, bought, sold, or held by OPI. Investments in securities are not insured, protected, or guaranteed and may result in loss of income and/or principal. This communication may include opinions and forward-looking statements, and we can give no assurance that such beliefs and expectations will prove to be correct. Investments in securities are not insured, protected, or guaranteed and may result in loss of income and/or principal. This communication may include opinions and forward-looking statements, and we can give no assurance that such beliefs and expectations will prove to be correct.

 

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