Summary

In a powerful recent dissent from a ruling that allowed fuel companies to challenge a government action under the Clean Air Act, Justice Ketanji Brown Jackson called out some of her colleagues on the Supreme Court for appearing “overly sympathetic to corporate interests.” Observing that “moneyed inter­ests” seem to “enjoy an easier road to relief in this Court than ordi­nary citizens,” Jackson raised questions about “inconsistent decisionmaking and whether this Court is holding business litigants to the same standards as everyone else.” Echoing these comments in a different case, Justice Sotomayor dissented from a “Kafkaesque” decision requiring immigrants to file an appeal before the order they seek to challenge even exists—wondering “whether the Court will extend its illogic beyond politically disfavored noncitizens” to “regulated businesses.”

Overwhelming evidence supports Justices Jackson and Sotomayor’s concerns. As CAC has long documented, the Roberts Court has adopted the position advocated by the U.S. Chamber of Commerce in nearly 70% of its cases, greatly exceeding the Chamber’s success rate in previous decades. The Court regularly issues far-reaching decisions benefitting industry, without giving comparably broad victories to plaintiffs or governments seeking to rein in corporate excess. And in selecting cases, the Court prioritizes opportunities to undo lower court decisions that go against corporate interests. Rarely does the Court reverse an industry victory to hand a win to everyday people.

Attempting to refute Justice Jackson’s concerns, Justice Brett Kavanaugh cited a list of cases that, he said, showed the Court applying standing doctrine “evenhandedly.” Strikingly, however, Kavanaugh did not identify a single case in which the Court denied standing to industry or gave individuals standing to sue industry.

Even the Chamber’s remarkable win/loss ratio does not fully capture its success under the Roberts Court. While the Chamber’s victories regularly subvert precedent and reshape the law, the Chamber’s “losses” generally only maintain the status quo. Rarely if ever does this Court move the needle significantly in favor of corporate accountability.

The Chamber of Commerce’s lopsided success rate is driven primarily by members of the Court’s conservative majority. In the past three terms—during which the Court’s membership remained stable—Justices Samuel Alito and Neil Gorsuch sided with the Chamber nearly 70% of the time, while Justices Jackson and Sotomayor (at the other end of the spectrum) did so only 42% of the time.

This year, the Court delivered somewhat less for big business than in recent terms, during which it imposed dramatic new barriers to regulatory agencies’ ability to act in the public interest and enforce the nation’s laws. By our count, the Chamber won “only” 58% of its cases this term.[i] The conservative bloc sided with the Chamber 60% of the time, while the more liberal bloc did so 45% of the time—a sizable difference, but not as stark as the usual division in business cases. There were no 6-3 splits divided along ideological lines, although notably, in McLaughlin Chiropractic Associates v. McKesson Corp., a case in which the Chamber did not participate, the six-Justice conservative supermajority expanded on last year’s Corner Post decision by further sweeping away time limits on legal challenges to agency action.

Justice Kavanaugh voted with the Chamber the most often this term (65%), closely followed by Justice Alito and Chief Justice John Roberts, while Justices Jackson and Sotomayor voted with the Chamber 42% of the time. Surprisingly, Justice Elena Kagan sided with the Chamber more often this term, at 53%, than Justice Amy Coney Barrett, at 47%. The two voted identically in all Chamber cases except Williams v. Reed, in which the Chamber supported plaintiffs who wanted to sue state agencies for constitutional violations—a case in which Barrett and several other conservatives voted against the Chamber.

Although this was not a landmark term on the business docket, the Court handed corporate America some significant victories, showing particular hostility to environmental protections. Overall, the Court continued making it easier for industries to get into court and choose their preferred venues.

For instance, in Diamond Alternative Energy v. EPA, the Court expanded companies’ ability to challenge environmental rules based on their speculative effects on other industries. That decision—supported only by what the majority called “commonsense economic realities”—contrasts with the Court’s repeated insistence that consumers and civil rights litigants cannot sue based on speculative harms. The majority reached out to decide this issue despite wide acknowledgment that the case would soon be moot.

Conversely, in Seven County Infrastructure Coalition v. Eagle County, the Court made it more difficult to challenge federal approval of development projects that stand to harm the natural environment. Instead of resolving the case narrowly, the Court reached that result by weakening one of the nation’s bedrock environmental statutes, the National Environmental Policy Act, as the Chamber had urged. Courts are now required to give substantial deference to the executive branch when it approves projects proposed by regulated businesses.

In another pair of environmental cases—Oklahoma v. EPA and EPA v. Calumet Shreveport Refining—the Court made it easier for the fuel industry to challenge clean air rules in a court of industry’s choosing. This result, the Chamber has said, “aligns with key themes and arguments in the Chamber’s brief, applying guardrails for which the Chamber advocated.” And in FDA v. R. J. Reynolds Vapor Co., the Court similarly expanded tobacco companies’ ability to choose their preferred venues for challenging public-health measures.

The Chamber certainly lost cases this term, but as usual, those losses were not as significant as the Chamber’s wins.

For instance, in FCC v. Consumers’ Research, a divided Court declined to expand the “nondelegation” doctrine, as industry had urged. But in reversing a radical and poorly reasoned Fifth Circuit decision, the Court simply reaffirmed longstanding precedent, maintaining the status quo. And the Chamber has claimed that even this decision endorses certain limits on delegation that the Chamber had urged.

As Justice Jackson has pointed out, the “Constitution does not distinguish between plaintiffs whose claims are backed by the Chamber of Commerce and those who seek to vindicate their rights to fair housing, desegregated schools, or privacy. But if someone reviewing our case law harbored doubts about that proposition,” the Court’s recent decisions “will do little to dissuade them.”

[i] The Chamber’s eleven wins this term were CC/Devas (Mauritius) Limited v. Antrix Corp., City and County of San Francisco v. EPA, Diamond Alternative Energy LLC v. EPA, E.M.D. Sales, Inc. v. Carrera, EPA v. Calumet Shreveport Refining, LLC, Fuld v. Palestine Liberation Organization, Oklahoma v. EPA, Seven County Infrastructure Coalition v. Eagle County, Colo., Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, Stanley v. City of Sanford, Fla., and Williams v. Reed. The Chamber’s eight losses were Commissioner of Internal Revenue v. Zuch, Cunningham v. Cornell, FCC v. Consumers’ Research, Medical Marijuana, Inc. v. Horn, Royal Canin U.S.A., Inc. v. Wullschleger, United States v. Miller, Waetzig v. Haliburton Energy Services, and Wisconsin Bell, Inc. v. United States, ex rel. Heath. Three Chamber cases (Facebook Inc. v. Amalgamated Bank, Laboratory Corp. of America Holdings v. Davis, and NVIDIA Corp. v. E. Ohman J:or Fonder AB) were dismissed without a decision, and in two cases (FDA v. R.J. Reynolds Vapor Co. and Trump v. CASA, Inc.) the Court did not resolve the issue that the Chamber’s brief addressed.