The Corporate Court
By 
There are two types of Supreme Court justices when it comes to corporate matters. There are those who are virulently pro-corporate. And there are those who are moderately pro-corporate. But there aren’t justices suspicious of corporations and whether it’s Obama or Hillary who actually names the next justice, that person is unlikely to represent anything looking like an anti-corporate or economically populist view.
At the same time, some argue that the Supreme Court under Chief Justice John G. Roberts Jr. has become perhaps the most business-friendly court in recent history. A 2013 study by Lee Epstein of Washington University in St. Louis, William M. Landes of the University of Chicago Law School and Judge Richard A. Posner of the federal appeals court in Chicago ranked justices according to their rulings in cases involving business. The findings, which Ms. Epstein and Mr. Landes updated through the 2014-15 term for this article, show that six of the 10 most business-friendly justices since 1946 sat on the Supreme Court at the time of Justice Scalia’s death.
President Obama has given little indication that he is likely to reverse this trend. Both of his previous nominees, Sonia Sotomayor and Elena Kagan, have been relative moderates on matters involving business, despite some progressive opinions in specific cases.
“They are not Hugo Black or William Douglas or Earl Warren,” said Arthur R. Miller of the New York University School of Law, who has written about the court’s friendliness toward business, referring to three prominent liberal justices.
A variety of factors can help explain the demise of economic populism on the Supreme Court, where it once had a solid constituency. In recent decades, business interests, led by the U.S. Chamber of Commerce, have played a much more active role in the confirmation battles over Supreme Court justices.
There is also the increasing partisanship of the United States Senate, which can prompt a Democratic president to select more moderate nominees in the hope of winning Republican votes.
Most important, however, may be a broad pro-business consensus within the upper ranks of the legal profession, one that has been more than two generations in the making.
Were Bernie Sanders to actually win, he would almost certainly name an anti-corporate nominee. Whether such a nominee could even win even all the Democratic votes however is an open question.