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Developing: Court Rules in Chamber’s Favor in EVERY CASE DECIDED So Far This Term

June 21, 2012

By Neil Weare, Litigation Counsel and Supreme Court Fellow

As we approach the end of the October 2011 Term, it is hard to think about almost anything other than the Court’s impending health care decision.  But there is another developing story that has so far been overlooked.  Without much fanfare, the U.S. Chamber of Commerce is edging towards what could be its first “perfect” Term before the Supreme Court since at least 1994.  With today’s decision in Southern Union Company v. United States, the Chamber has declared victory in all seven of its cases that have reached a clear outcome (two are additionally classified as “other” because the Court avoided addressing the issue at stake on procedural grounds, and in one the Chamber filed on behalf of neither party).

This string of seven straight victories brings the Chamber’s overall win/loss rate before the Roberts Court up to 68% (60 of 88 cases).  As we have reported in prior studies, this is significantly higher than the Chamber’s success before the Rehnquist Court of 56% (45 of 80 cases from 1994-2005), and dramatically higher than its success rate before the Burger Court, when the Chamber only won 43% of its cases (15 of 35 from 1981-1986).
This story continues to develop as two of the Chamber’s cases are still pending before the Supreme Court this Term.  In the health care case, the Chamber has not taken a position on whether the individual mandate is constitutional, instead arguing only that if the mandate is found unconstitutional, then the Court should strike down the entire Affordable Care Act.  In another case, First American Financial Corporation v. Edwards, the Chamber is arguing that violations by banks and title companies of the anti-kickback provision of the federal Real Estate Settlement Procedures Act should not, by themselves, be sufficient to give homebuyers “standing” to sue violators in court.
We will produce a complete end-of-the-Term report once all the decisions are in, but one thing is clear already: the Chamber is quietly having a very, very good year before the Supreme Court.   
(Updated 12:11PM 6/22/2012)