The Roberts Court and Corporations: The Numbers Tell the Story | October Term 2009
The Supreme Court’s 5-4 decision this past January in Citizens United v. Federal Election Commission, holding that corporations have the same constitutional right as individuals to spend money to influence elections, has focused a national spotlight on the rulings of the Roberts Court in cases involving the interests of big business and led to charges that the conservative majority on the Roberts Court is being “activist” in favoring corporate interests. This charge is supported anecdotally by ideologically-divided rulings in other high-profile cases such as Ledbetter v. Goodyear (2007) and Exxon v. Baker (2008).
To test empirically the idea that the five conservatives on the Roberts Court tend to side with corporate interests, at least more than their colleagues do, we have examined, for those cases in which the United States Chamber of Commerce participated as a party or as an amicus curiae, every opinion released by the Roberts Court since Justice Samuel Alito began participating in decisions in early 2006 through the end of the term beginning in October 2009 — a universe of 60 cases — and we tracked the votes of each Justice in each of the cases. Over that period, a cohesive five-Justice majority on the Court has produced victories for the Chamber’s side in 68% of cases overall, and 74% of closely divided cases.
The Chamber of Commerce was even more successful in the October 2009 term than it was in the overall period we studied, winning 13 of 16 cases (81%) and five of the six cases (83%) decided by a five-Justice majority.
The data support the proposition that there is a strong ideological component to the Justices’ rulings in business cases, with the Court’s conservatives tilting more decisively toward the Chamber’s position than the Court’s remaining Justices tilt in the other direction. The members of the Court’s conservative majority (Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas) were very close together in their overall support for the Chamber’s position. Justice Kennedy does not “swing” much in business cases: he supported the Chamber 69% of the time, close to the voting pattern of Justice Alito, who had the highest percentage support for the Chamber — voting for the Chamber’s position in 78% of the cases.
This cohesion has produced an overall success rate for the Chamber of 68% (41 victories in 60 cases). The Court’s moderate/liberal “bloc” (including former Justice David Souter, who was on the Court for most of these rulings) was more centrist: collectively, the Court’s conservative “bloc” (Roberts, Scalia, Alito, Thomas, and Kennedy) cast only 26% of their votes against the Chamber, while the moderate/liberal bloc cast 43% of its votes in favor of the Chamber.
Cases Decided by a Narrow Majority
Obviously, not all business cases are the same. Some of these cases apparently were not difficult for the Court to decide, at least in terms of the ability of the Justices to reach consensus. Indeed, more than one-third of the business decisions we examined were decided by a unanimous Court; the Chamber won 14 of those 22 cases (64%). At the other end of the
spectrum, about one-third of the cases in our survey sharply divided the Court, and it is in this subset that ideological voting is most pronounced. These cases include all of the blockbuster rulings decided during the period of this study, including Citizens United v. FEC (2010), Ledbetter v. Goodyear (2007) and Massachusetts v. EPA (2007). Of the 19 cases decided by a five-Justice majority, 14 (74%) resulted in victories for the Chamber. In these cases, the conservative bloc voted for the Chamber 85% of the time, compared to only 15% for the moderate/liberal bloc. Strikingly, in these close cases, Justice Alito never cast a vote against the Chamber of Commerce’s position.
In testing the pro-corporate leanings of the Justices on the Roberts Court, we looked at the success rate of the Chamber of Commerce because the Chamber’s litigation wing, the National Chamber Litigation Center (NCLC), by its own account, serves “as the voice of business in the courts on issues of national concern to the business community,” and files amicus curiae briefs in every major case pitting business interests against the government or an individual plaintiff or other private party. (The NCLC typically does not file in cases pitting one corporation against another.)
We developed the examined database of cases simply. We began by searching Westlaw for Supreme Court cases in which the Chamber had filed a brief. We identified the position taken by the Chamber and compared it to the result reached by the Supreme Court, classifying each case as either a “win” or a “loss” for the Chamber. We then compared our results to the Chamber’s own reports of these cases. The NCLC publishes periodic “CaseList” reports identifying the cases in which the Chamber is involved throughout the federal and state court systems, including the U.S. Supreme Court. Once these cases have been decided, the Chamber reports them as a victory, a loss, or, more rarely, a partial victory or “other.”
Our classification of these cases was consistent with the Chamber’s, with minor exceptions. First, we’ve scored the two cases the Chamber identified as “partial victories” — Rapanos v. United States and Jones v. Harris Associates — as wins for the Chamber, both to fit our binary statistical presentation (win or loss), and, more important, because the outcomes of the two cases were much more like victories for the Chamber than losses. In two other cases, we have accepted the Chamber’s characterization of cases over our own, even though it makes the Chamber’s success rate appear lower than it arguably is. We read Boyle v. United States to be at least a partial victory for the Chamber. We have nonetheless scored Boyle as a loss, following the Chamber’s characterization. Similarly, in DaimlerChrysler v. Cuno, the Chamber supported party prevailed in the Supreme Court on standing, an issue of interest to the Chamber. But because the Chamber’s amicus brief addressed another issue, which the Court did not reach, the Chamber classified Cuno as “other” and we followed its lead and did not include Cuno in the database.
For the seven cases in our dataset decided during June 2010 (Black v. U.S., Skilling v. U.S., Granite Rock Company v. Teamsters, New Process Steel v. NLRB, Morrison v. National Australia Bank, Rent-A-Center v. Jackson, and Monsanto v. Geertson Seed Farms), the National Chamber Litigation Center has not yet released its scoring. We have scored each of them as wins, based on the success on the merits of the
We have excluded from our dataset four other cases in which the Chamber filed briefs — Warner-Lambert Co. v. Kent (judgment below affirmed by an equally divided Court), Mohawk Industries v. Williams (vacated and remanded without opinion), Phillip Morris v. Williams (after it was decided by an opinion in 2007, the case returned to the Court in 2008 and was dismissed as improvidently granted), and BCI CocaCola Bottling Company of Los Angeles v. EEOC (dismissed before argument by agreement of the parties) — because they did not produce written opinions by the Court.
Finally, readers may notice that our charts do not include the Court’s newest Justice, Sonia Sotomayor. Justice Sotomayor participated in only thirteen of the decisions that we’ve tracked, not a big enough sample to be particularly meaningful in our opinion. We did include her votes for and against the Chamber along with Justice Souter’s, when calculating the votes of what we call “the moderate/liberal bloc.” For those interested, in those thirteen cases, Justice Sotomayor voted in favor of the Chamber’s position five times (four times in unanimous decisions, and once in a 7-1 case) and voted against the Chamber’s position eight times. In these thirteen cases, she voted against the Chamber more than any other member of the Court did, providing some support for an argument that she will be less inclined to
support the Chamber than was her predecessor, Justice Souter, who voted for the Chamber in almost 50% of the cases he heard during the period of our study.
 National Chamber Litigation Center 30th Anniversary Report, available here
 For links to all electronically available CaseList reports, see www.uschamber.com/nclc/caselist/archive.htm