Corporations and the Supreme Court: A Muted Term Belies a Supreme Court Deeply Polarized on Corporate Power | 2018-2019 Term

This Supreme Court is sharply divided between the pro-corporate record of its conservative wing and the moderate record of its more liberal wing. The Court’s new term could bring a return to the Chamber’s frequent, astonishingly high win rates. Such friendly treatment for the Chamber could prove dire for workers, consumers, and the environment.

Summary

After two years of stratospheric victory rates before the Supreme Court, corporate interests saw a dip in their success rate during the Term that ended in June 2019, winning “only” 62% of the cases in which the U.S. Chamber of Commerce filed a brief. While business interests were remarkably effective in persuading the Court to accept cases for review last Term, they suffered some notable defeats in those cases and were stymied in some of their efforts to push the law in new directions.

Several unusual factors combined to bring down the Chamber’s success rate last Term. First, when the Court agrees to review an especially large number of business cases—as it did last Term, the highest number in a decade—the Chamber has difficulty sustaining the phenomenal victory rates it typically enjoys before the Roberts Court, likely because the expanded pool sweeps in more cases where even pro-business Justices must acknowledge that corporate America’s opponents clearly have the better of the argument. Second, last Term’s business docket was dominated by disputes about the interpretation of narrow statutory terms, in relatively lower-stakes controversies, a context where ideological predilections may be less likely to shape outcomes. Third, and most notably, last Term featured a number of cases in which individual Justices conspicuously broke ranks and joined the opposing ideological camp, a phenomenon that reduced the frequency of 5-to-4 conservative/liberal splits and that led to a number of surprise Chamber losses. Conservative defections in those cases turned what would have been an 80% Chamber success rate into the 62% rate that the Chamber achieved.

Beneath the placid surface of this past Term and its displays of cross-ideological unity, however, the Court remains as divided as ever in cases that pit corporate interests against individuals or the government—an ideological rift that is a distinctive feature of the Roberts Court. While notable instances of ideological flipping last Term may have obscured this fact, the overall data reveals that the conservative and more liberal Justices remain separated by a wide gulf in their likelihood of favoring big business, an entrenched divide that appears more likely to widen than to narrow next Term.

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