QUICK TAKE: The Chamber of Commerce at the Supreme Court: 2020-2021
Constitutional Accountability Center President Elizabeth Wydra said:
This term has some observers suggesting the Supreme Court is more moderate than many predicted, but the fact is that the Roberts Court is unquestionably conservative. Exhibit A: There were few surprises on this term’s business docket, as our analysis shows. Corporate interests represented by the U.S. Chamber of Commerce continued to do strikingly well in the Roberts Court, winning 83% of their cases. But even when a conservative justice took a perhaps unexpected turn and joined the more liberal justices in voting against the Chamber, business interests showed that–with the new conservative supermajority in place–they can now prevail in such divided cases.
Topline takeaways for the Chamber at the Supreme Court in the 2020-2021 term
Analysis by CAC Senior Appellate Counsel Brian Frazelle:
- Corporate America was incredibly successful at the Supreme Court this term, winning the vast majority of its cases, consistently reversing lower-court wins for plaintiffs or the government, and achieving landmark victories on constitutional issues that will reshape important areas of the law in favor of big business.
- Despite years of promises that a conservative judiciary would respect the limited role of the courts and avoid “legislating from the bench,” the first term with a conservative supermajority on the Court was marked by decisions that used novel interpretations of the Constitution to limit the power of elected legislatures (federal and state) in ways that benefit corporate interests.
- For example, in TransUnion v. Ramirez, the Court held that Congress may not give individuals new legal protections that can be enforced in court against private defendants unless those protections involve harms that judges regard as sufficiently “concrete”—a novel limit on the political branches that has no basis in the Constitution’s text or history. In Cedar Point Nursery v. Hassid, the Court expanded the meaning of a physical “taking” of property under the Fifth Amendment, limiting the power of states to authorize union recruitment in places of employment and opening the door to similar challenges aimed at other health, safety, labor, and environmental rules. In Americans for Prosperity Foundation v. Bonta, the Court struck down a state law that was passed to prevent illegal funneling of money to nonprofits by requiring them to disclose the identities of their major donors to the state. In PennEast Pipeline Co. v. New Jersey, the Court held that private companies, wielding the federal government’s eminent domain power, may sue states to seize their property for the construction of energy pipelines, reasoning that the states surrendered their immunity from this type of suit when they ratified the Constitution—despite a lack of historical evidence supporting that understanding. And in Collins v. Yellen, the Court doubled down on last term’s biggest victory for corporate interests, Seila Law v. CFPB, expanding the scope of that decision and further limiting Congress’s power to shape the structure of federal agencies.
- In other cases, the Court consistently interpreted statutes in ways that allow big business to evade regulation and accountability, to the detriment of federal regulators, local governments, consumers, shareholders, and victims of human rights abuses.
- In business cases decided this term, the Court adopted the position advocated by the U.S. Chamber of Commerce more than 83% of the time (10 of 12 decided cases).
- Even that high victory rate understates the Chamber’s true success, because the business cases the Court agreed to review this term consisted almost entirely of opportunities to reverse lower-court victories for plaintiffs or the government—with almost no opportunities to reverse lower-court victories for corporate interests. That is, in 93% of this term’s Chamber cases, the Court was considering whether to reverse a lower-court victory for plaintiffs or the government. But in only 7% of this term’s cases (a single case) was the Court considering whether to reverse a lower-court victory favoring business interests.
- Only once this term did the Court reverse a lower-court victory for corporate interests. By contrast, the Court reversed ten lower-court victories for plaintiffs or the government.
- This has become the pattern under the Roberts Court: In the past five years, the Court has decided more than 90 cases in which the Chamber filed a brief. In just 2 of those cases did the Court reverse a lower-court victory for corporate interests. But during the same period, the Court reversed nearly 50 lower-court victories for plaintiffs or the government. (In the remaining cases, the Court affirmed the lower court’s decision.)
- The Chamber’s two losses this term were both unanimous, suggesting that there was not much room for debate about the correct result after briefing and argument. By contrast, the Chamber achieved divided victories (in which at least one Justice dissented) in many cases, and it won deeply divided victories (5-to-4 or 6-to-3 votes) in the most significant business cases this term: TransUnion, Cedar Point, PennEast, and Americans for Prosperity Foundation.
- Collectively, the six conservative Justices cast more than 78% of their votes in favor of the Chamber. The three more liberal Justices, by contrast, came in at less than 53%.
- Chief Justice Roberts and Justice Kavanaugh favored corporate interests most consistently, each voting for the Chamber 83% of the time. At the low end of the spectrum, Justices Kagan and Sotomayor voted for the Chamber 50% of the time.
- These numbers are consistent with long-term trends at the Roberts Court, where the moderate-to-liberal Justices have favored the Chamber’s position roughly 50% of the time, while the conservative Justices have done so roughly 73% of the time.
- This term did feature an unusual number of cases (3 out of 12), in which one or more conservative Justices dissented from a Chamber victory—something that we have previously noted almost never happens. These dissents were based on the conservative Justices’ views about the original meaning of the Constitution (Justice Thomas in TransUnion; Justices Barrett, Gorsuch, and Thomas in PennEast) or about the approach the Court should take when choosing which questions to resolve in a case (Justice Alito in Nestlé v. Doe).
- One takeaway from this development: With a conservative supermajority in place, business interests can now prevail in divided cases even if a conservative Justice can be persuaded to join the more liberal Justices in voting against the Chamber’s position. This allows for even more extreme and pro-corporate results.
The Newest Justices
- Justice Gorsuch remains the greatest ally of corporate interests on the Court, having cast 79% of his votes in favor of the Chamber during his time on the bench.
- Justice Kavanaugh is solidly in line with the conservative majority, having voted for the Chamber 71% of the time during his two years with the Court.
- Justice Barrett, in her first year on the bench, cast 90% of her votes for the Chamber—although this number may be artificially inflated to some degree because of when she joined the Court. (The two business cases she missed this term were the two cases the Chamber unanimously lost. Had she participated in those cases and voted with the rest of the Justices, her record this term would have matched Justice Gorsuch’s at 75%.)