The Business of the Roberts Court
In 2015, the Sherman Antitrust Act will turn 125. 2011 marks the centenary of the Supreme Court’s adoption of a rule of reason to aid in interpreting the operative language of that law. With the Sherman Act Congress had clearly enjoined restraints of trade and monopolization, but they left these important terms undefined. From 1911 to the present day it would be the Supreme Court which would play the most significant role in continuing to adapt, refine and develop this keystone of American economic policy. One of America’s oldest active statutes, the Sherman Act established the framework for maintaining a competitive national economy during times of rapid social, economic and political change, and the Supreme Court, more than any other political institution, has helped to ensure that it maintains its relevance in the midst of subsequent changes.
Today the Roberts Court seems poised to strike out in a more conservative direction, prioritizing business cases and moving away from the Court’s previous concerns with civil rights and the new federalism. Indeed, some have gone so far as to christen the Roberts Court as the most pro-business since the days of the Lochner Court.1 As early as March 2008, in a cover story for the New York Times Magazine, Jeffrey Rosen suggested that the legacy of the Roberts Court would likely be a product of the combination of an increasing number of business cases appearing on its docket, and the Court’s increasing propensity to rule in favor of business interests. “Though the current Supreme Court has a well-earned reputation for divisiveness, it has been surprisingly united in cases affecting business interests. Of the 30 business cases last term, 22 were decided unanimously, or with only one or two dissenting votes.”2 Business interests, argues Rosen, seem to be receiving a warm reception at the bar, a trend which is likely to continue for the foreseeable future. And, indeed, it could be argued that