In response to pieces such as the New York Times "Justice For Big Business" and "Corporations Find a Friend in the Supreme Court" that tag the current Supreme Court as pro-business, Richard Epstein writes "The Myth of a Pro-Business SCOTUS" in the Hoover Institution's Defining Ideas:
I do not want to be construed as an apologist for big business, but I do think that the current anti-business rhetoric seriously misstates the relevant issues. Commentators could just as easily denounce the four liberal justices as anti-business apologists for big government. But that transparent ploy suffers from the same three defects as the usual attacks on the Supreme Court: selection bias; misplaced significance; and failure to account for the importance of consistently taking the ex ante perspective.
As for "ex ante":
[I]t is always critical to distinguish between the ex ante and ex post effects of decisions. Under the ex post perspective, the question of who wins is asked after the dice have been rolled; here, commentators find it easy to classify outcomes as pro- or anti-business.
But that judgment is much more difficult to make when these cases are reexamined from the ex ante perspective, where the question is to figure out the overall social gains and losses that are likely to flow from the choice of any particular rule before any particular dispute arises. The stumbling block in the analysis is that any decision that benefits particular consumers, say, in the ex post state of the world, may well harm consumers as a broader class in the ex ante state of the world.