QUICK TAKE: The Chamber of Commerce at the Supreme Court: 2019-2020
Constitutional Accountability Center President Elizabeth Wydra said:
Corporations, led by the U.S. Chamber of Commerce, have had a shockingly free hand before the Roberts Court. The Chamber has won 70% of the cases in which it has filed briefs at the Court since 2006—a win rate far and away above its record during comparable periods in previous decades. No one should begrudge a litigant that wins a close case with strong arguments on their side. However, corporations and the Chamber know that they can depend on the Roberts Court to rule their way in a striking number of critically important cases, whether the law favors them or not.
Topline takeaways for the Chamber at the Supreme Court in the 2019-20 term
Analysis by CAC Appellate Counsel Brian Frazelle
- The U.S. Chamber of Commerce had another outsized win rate this term, prevailing in 10 out of the 15 cases in which it filed a brief favoring one side or the other (67%). And even that high win rate understates the real success of the Chamber this term, as explained below.
- The ruling in Seila Law v. Consumer Financial Protection Bureau—split ideologically 5-4, and authored by Chief Justice John Roberts—was the Chamber’s most significant victory this term and one deeply harmful to consumers, stripping political independence from the CFPB director and making that position fireable at will by presidents susceptible to industry influence. Beyond its impact on the CFPB, the decision threatens the future of other independent regulators, whose work promotes the public’s safety and well-being. This was a tide-changing victory for corporate interests, signaling a retreat from nearly a century of precedent supporting agency independence.
- In other cases this term, the Court made it harder for victims of racial discrimination to prevail under a Reconstruction-era civil rights law (Comcast v. National Association of African-American Owned Media); restricted the circumstances in which victims of fraudulent debt-collection tactics can challenge those tactics (Rotkiske v. Klemm); limited the ability of employees to sue to protect their retirement plans (Thole v. U.S. Bank); and permitted the construction of natural gas pipelines through National Park Service lands (U.S. Forest Service v. Cowpasture River Preservation Association).
- To be sure, the Court also dealt the Chamber important losses. In Liu v. SEC, the Court rejected the Chamber’s position that courts may never order the disgorgement of ill-gotten profits in SEC enforcement actions. And in Maui v. Hawaii Wildlife Fund, the Court rejected the Chamber’s position that polluters are exempt from the Clean Water Act as long as they discharge pollution into navigable waters indirectly. But even in these cases, the Court handed partial wins to the Chamber by staking out a middle ground that gave industry some of what it asked for.
- Although the Chamber lost roughly a third of its cases this year—consistent with its long-term average under the Roberts Court—those losses were all in cases where the Supreme Court simply refused to reverse lower-court victories for plaintiffs or the government. In none of this year’s cases did the Supreme Court reverse a lower-court victory for corporate interests. Amazingly, in cases the Chamber has participated in, it has been more than four years since the Supreme Court reversed a lower-court decision favoring corporate interests, although the Court has decided more than 70 Chamber cases during that period.
- The ideological divide between the conservative and more liberal Justices in business cases remained stark, albeit not quite as extreme as in some years. Voting rates in favor of the Chamber’s position this term ranged from Justices Kagan and Sotomayor (at 47%) to Justice Thomas (at 73%), with the other Justices in between these poles.
- Observers may note that there were unusual cases this term in which conservatives were alone in dissenting from a Chamber win—something that in recent years has become virtually unheard of. This may have been due to the Chamber being on the wrong side of issues particular conservative Justices care about. For example, in Atlantic Richfield Co. v. Christian, Justices Gorsuch and Thomas showed their strong belief in landowners’ rights; in Moda Health Plan v. United States, Justice Alito voted against the Affordable Care Act and access to courts. Additionally, the ideological breakdown normally seen in divided Chamber decisions was inverted this term in the highly atypical case DHS v. Regents of the University of California—the DACA case—in which business and progressive interests were aligned against the Trump administration.
- As usual, the success of corporate interests was evident this year not only in the outcomes the Court reached on the merits, but also in the Court’s choices about which cases to hear. Out of the 15 cases this term in which the Chamber took a position on the merits, the Chamber supported the petitioner in 11. This means that in 73% of these cases, the Court took up a lower-court decision that business interests wanted the Court to review. In only 27% of these cases did the Court take up a decision that opponents of business interests wanted the Court to review.