Corporate Accountability

The Chamber Of Commerce Won More Than Two-Thirds Of Its Supreme Court Cases This Term

By Nicole Flatow

Big business wasn’t the public focus of this year’s just-completed U.S. Supreme Court term. But the corporate lobby’s number one representative nonetheless retained the outsized influence on U.S. jurisprudence that has come to characterize the Roberts Court, winning more than two-thirds of its cases even by conservative estimates.

The Chamber of Commerce won 11 of the 16 cases in which it filed briefs, according to data compiled by the Constitutional Accountability Center (CAC). This 69 percent win rate marks the continued success of the lobbying shop that dubs itself the world’s largest business organization in shifting Supreme Court precedent to increasingly favor big business.

Factoring in this term, the Chamber of Commerce has enjoyed an overall 70 percent win rate since the court has been led by Chief Justice John G. Roberts — by far the highest win rate in modern history. During the years when the court was led by the last chief, Justice William Rehnquist, the Chamber’s win rate was 56 percent, and under the chief before that, Warren Burger, its win rate was just 43 percent:

The Chamber’s success this year demonstrates its continued dominance, after several years in which the U.S. Supreme Court has sided with the Chamber of Commerce at a rate of 80 percent. Major cases during this period include Citizens United (this year’s sequel doubled down on that ruling, although the case concerned wealthy individuals rather than their businesses), a string of decisions eroding the mechanisms for holding corporations accountable as a class, and Kiobel v. Royal Dutch Petroleum, which shredded accountability for human rights abuses abroad, including those by corporations with some U.S. presence.

As CAC’s Tom Donnelly points out, the Chamber’s win rate this term was more nuanced. In many of the cases it won, the Chamber advocated extreme positions that would have shifted the law dramatically, and what it got were more moderate compromise outcomes that nonetheless made the law more business-friendly than before the cases were decided.

Wins for the Chamber were not the only measure of big business influence: Some of the biggest blockbuster wins this term for businesses didn’t involve the Chamber at all. The ruling in favor of craft store Hobby Lobby, for example, was a loss on reproductive rights, women’s rights, and religious liberty. But it was also a win for corporations wishing to limit health care coverage to their employees, and to intervene in women’s medical decisions. The ruling limiting union fees in Harris v. Quinn was a loss for workers. But it was also a win for an anti-union litigation shop that is supported by many large businesses. Factoring in these cases, “it was a very big term for large corporations as the business community’s long-term investment in the law and the courts continues to pay huge dividends,” CAC’s Doug Kendall writes. In fact, a comprehensive academic study released last year that used a range of factors other than Chamber participation to measure “business-friendly” also concluded that the Roberts Court is significantly more pro-business than its predecessors, and that Justice Samuel Alito, who wrote the majority opinions in both Harris andHobby Lobby, is the most business-friendly justice over the past 65 years.

Nonetheless, the Chamber’s influence remains unique because the lobbying shop that claims 3 million member businesses has been venturing into increasingly radical territory in arguments that call for rolling back years of established precedent that disfavor its business interests. In several major decisions, the justices didn’t go as far as the Chamber asked in their ruling, but nonetheless sided with the Chamber on the ultimate result.

Likely the Chamber of Commerce’s most significant win this term was the case that limited the president’s recess appointments power, NLRB v. Noel Canning. In that case, the Chamber took the unprecedented step of directly representing one of its member businesses, Noel Canning Corp., rather than filing a “friend of the court” brief supporting a particular position, as it typically does. The Chamber had argued that the court should invalidate some two centuries of presidential appointments made while Congress is out of session. The U.S. Supreme Court decided the case on much narrower grounds than the Chamber had called for. But the outcome nonetheless invalidated President Obama’s appointments of several National Labor Relations Board members and effectively means that members of Congress can block any appointments they don’t like for the foreseeable future, a situation that is particularly likely to hobble unions and benefit big business.

At least one of the 16 cases that the Chamber counted as a win was deemed one of the five “losses” by CAC, because it was so narrow. In that case, Halliburton Co. v. Erica P. John Fund, Inc., the Chamber once again sought to eviscerate established precedent that enables shareholders to sue corporations for securities fraud. Ultimately the court did side with the party supported by the Chamber, but so narrowly that the Chamber said afterward it was “disappointed.” Loss or not, however, CAC’s Donnelly concludes that the “ultimate decision still managed to shift the law in a business-friendly direction, making it easier for business defendants to toss out securities fraud suits at the class certification phase.”