Federal Courts and Nominations

Chamber Goes to Courts More Often — and Wins


Roll Call
Chamber Goes to Courts More Often — and Wins
By Ambreen Ali
June 30, 2011


While most Washington influence efforts focus on Congress or the federal agencies, the nation’s largest business lobby has been expanding its campaign to influence the Supreme Court.

The U.S. Chamber of Commerce has for years been one of the biggest players on Capitol Hill, but the group has also been hiring more lawyers for its National Chamber Litigation Center to advocate on behalf of businesses before the court.

The center has grown steadily during the past 34 years and reported $3.2 million in revenue in 2009. It hired two lawyers in the past year, adding to the three already on staff and expanding the organization to the largest it has been since its inception.

As the Supreme Court takes on more business-related cases, the group has become even more aggressive in its advocacy: It filed more briefs in the last judicial term than in any prior year, weighing in on 21 cases. The organization is also active in state and federal courts, as well as some international tribunals.

The legal push has coincided with a string of high-profile business victories, including the Supreme Court’s controversial 2010 ruling in the Citizens United campaign finance case and a recent ruling striking down a class-action suit against Wal-Mart.

Robin Conrad, executive vice president of the chamber’s litigation center, played up her group’s role in the court’s decision to hear the Wal-Mart case.

“We’d like to think some of those amicus briefs … helped to educate the court,” she told reporters last week.

In addition to briefs arguing its position, the chamber plays a role in the judicial process by initiating litigation and helping Supreme Court advocates prepare their oral arguments.

The chamber’s growing involvement in cases has drawn scrutiny from some watchdog groups.

The liberal Constitutional Accountability Center released a report Tuesday pointing out the increasing philosophical alignment between the chamber and the Supreme Court.

The current court, led by Chief Justice John Roberts, has sided with the chamber’s position on business cases 65 percent of the time, more than it did under any previous chief justice.

“The chamber is having a great deal of success in helping to shape the docket of cases that the Supreme Court hears and then having a lot of success in winning the cases,” said Doug Kendall, a lead author of the report.

A chamber spokesman countered that the group’s efforts are in line with a long tradition of outside groups filing amicus briefs to weigh in on cases. Labor unions, First Amendment organizations and other interest groups do the same, but Kendall said none of them compare.

“There’s no group that is focused as comprehensively on the jurisprudence before the Supreme Court and that is as active,” Kendall said.

If true, the results have been far from perfect. The report by Kendall’s group showed that the chamber won just 57 percent of the cases it argued in the previous term, down from an 81 percent success rate in the one prior — which Kendall attributed to normal fluctuation.

Conrad said the chamber’s mixed record success diminishes “the silly myth of the pro-business court.”

“Simply tallying up wins and losses ignores the reality that not all cases are created equal,” she said.

At the same time, the chamber has encouraged the notion that it is somehow influencing justices.

On the litigation center’s website, the group highlights a quote from Carter G. Phillips, a partner at Sidley Austin who often represents the chamber in the Supreme Court.

“Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center,” he said.

Phillips said in an interview that he often asks the chamber to file a brief in his cases because he believes it gets the court’s attention.

“My first thought is to turn to the chamber for amicus help,” he said. “They know how to present the arguments in a way that’s designed to maximize the positive effect.”

But legal experts said the influence of the chamber, or any other group, on the Supreme Court is exaggerated. In cases where the court has ruled in the chamber’s favor, University of Pennsylvania law professor Kermit Roosevelt said, “It’s more likely that they are seeing eye-to-eye.”

“It’s a pretty pro-business court, so those cases would probably be coming out the same way without the Chamber of Commerce participating,” he said.

The justices receive briefs from advocacy groups of all stripes and perspectives, so it’s not just the chamber that has a say. In the Wal-Mart case, labor unions and consumer rights advocates were among the 28 interest groups to state their arguments in the case.

The briefs are intended to inform the justices’ decision, or perhaps introduce a new argument in the case. But Roosevelt said they often do not have any influence at all.

“Generally speaking, interest groups matter if they show the court a perspective that the court wasn’t aware of. It’s unlikely that the chamber was doing that,” he said. He added that, for the justices, “The outcomes of the cases are more important to them than any lobbying group.”

Lee Epstein, a University of Southern California law professor, agreed that the chamber’s influence might be overstated.

But she added that effective arguments can sway court opinion. Over the years, Epstein said, it’s likely that the chamber has figured out which ones those are.

“It could be that they’ve just gotten really good at this game,” she said.

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