Corporate Accountability

On the Chamber’s Recent Losses

Even Ted Williams had dry spells.  Unsurprisingly in light of the media attention given to the Roberts Court’s tendency to rule in favor of corporate interests commentators seeking to refute this tendency are picking up on the fact that the U.S. Chamber of Commerce has started out its October 2010 Term campaign in the Supreme Court by going one-for-five.  But with at least fifteen cases in which the Chamber has participated still  left to be decided this Term, it is way too early to be making pronouncements about what this Term’s early decisions mean for the Chamber’s overall batting average before the Roberts Court.

As we reported last year in our study Open for Business: Tracking the Chamber of Commerce’s Supreme Court Success Rate from the Burger Court through the Rehnquist Court and into the Roberts Court, since Justice Samuel Alito joined the Court in 2006 the Chamber has enjoyed an unprecedented 68% win percentage.  With this Term’s decisions to date added, that drops slightly to 65% — still almost 10 points higher than the Chamber’s success rate before the stable Rehnquist Court (1994-2005).

As is often true of the Court’s decisions this early in the Term, its decisions in the five Chamber cases handed down so far have been non-controversial, with only two dissenting votes cast in those five decisions (both  in Bruesewitz v. Wyeth, which the Chamber won).  Just as in baseball, where the real action comes at the end of the season, the nation will get a better idea of how the Chamber is really doing as the Term heats up later this spring.  If I were a betting man, the good money is that the Chamber’s batting average will not stay at .200 for long.

Of course, in the Supreme Court, as in baseball, what really matters is what happens in the clutch.  It is here that the conservative members of the Roberts Court have really made the Chamber shine.  First, as we noted in December, the percentage of “close” cases—which we define as cases with a five-Justice majority—has risen from just 18% of all Chamber cases during the stable Rehnquist Court to 32% through the end of the last Term of the Roberts Court.  Second, and even more troubling, the Chamber has won 75% of the time before the Roberts Court when it comes to close cases—a 10-point jump from during the Rehnquist Court.

And which Justice favors the Chamber the most?  In close cases, over the period of our study, the Chamber batted a perfect thousand so far as Justice Alito sees it.  This reflects a growing ideological divide on the Roberts Court when it comes to Chamber cases, something that was negligible during the stable Rehnquist Court.  For the conservative bloc on the Roberts Court, the Chamber has the winning arguments in nearly three-out-of-four of all the cases it participates in, almost 15 points higher than with the conservative bloc of the Rehnquist Court.  At the same time, the moderate/liberal blocs of both Courts have remained relatively stable, supporting the Chamber position just under 50% of the time.  Only to conservatives on the Roberts Court has the Chamber become a Hall of Fame player.

It will be interesting to see how the Term goes from here, but if the past is prologue it seems unlikely that this short dry spell for the Chamber will last.