Summary

If the October 2011 Term ended with a bang for President Obama as the Court upheld his signature legislation, the Affordable Care Act, it ended with a bit of a whimper for the U.S. Chamber of Commerce, as the Court did not reach the issues briefed by the Chamber in its two remaining cases.  Nonetheless, the Chamber had a banner term in terms of wins and losses, with the Chamber reaching the finish line with a perfect 7-0 win/loss record.[1]   Not since the October 1991 Term has the Chamber been undefeated before the Court.

But the Chamber’s undefeated streak only tells part of the story of the Chamber’s success this Term.  Just as striking is the fact that the Chamber went head to head against the Solicitor General and the Obama Administration five out of seven times, coming out on top every time.  This reflects a broader trend that the Court is becoming increasingly ideologically divided in cases that are important to corporate interests, with the Court’s conservative Justices taking the Chamber’s side at historic levels, particularly in close cases.

The Court’s actions yesterday meant that there was no shift in the 7-0 winning streak the Chamber had going into the last day of the Term.  With the Court upholding the constitutionality of the Affordable Care Act, it did not reach the narrow argument made by the Chamber that if the Court found the individual mandate unconstitutional then it should strike down the entire ACA (the Chamber took no position on the broader question of the individual mandate’s constitutionality).[2]   And the Court dismissed as improvidently granted First American Financial Corp. v. Edwards.  As such, the Court did not have occasion to address the Chamber’s argument that violations by banks and title companies of federal anti-kickback provisions should not, by themselves, be sufficient to give homebuyers “standing” to sue violators in court.

Overall now the Chamber has prevailed in 68% of its cases before the Roberts Court (60 of 88 from 2006-2012).[3]   The Chamber’s success has grown significantly since the stable Rehnquist Court, when it was just 56% (45 of 80 cases from 1994-2005),[4]  and is dramatically higher than its success rate before the stable Burger Court, when it was just 43% (15 of 35 from 1981-86).[5]

Court’s Favor of Chamber over Solicitor General Unprecedented

What makes the Chamber’s Success this Term most impressive is its head to head victories over the Solicitor General’s office.  In past years, some have identified that the Chamber generally wins when it shares the same position as the Solicitor General’s office and generally loses when it takes an opposing position.[6]   But as Adam Winkler has reported, this Term the Court has turned on its head the historical trend of success enjoyed by the Solicitor General’s office.[7]

This Term, the Chamber found itself taking the opposite view of the Solicitor General in five of the seven cases that it classifies as wins or losses.  In all five cases that the Solicitor General’s office sat across from the Chamber, the Court took the Chamber’s position over the government’s.  So while the Chamber went a perfect 7-0, the Solicitor General was 2-5. While it may have been the case in the Bush Administration that the Chamber typically won only when the Solicitor General was on its side, it now appears in the Obama Administration the Solicitor General wins in business cases only when it sides with the Chamber.  That is a big change.

U.S. Chamber Success Reflects an Increasing Ideological Divide on the Court

The Chamber’s success before the Roberts Court, particularly when it goes head to head against President Obama, has emerged alongside a new and troubling ideological divide.  Examining the votes of individual Justices, the average level of Chamber support among the conservative bloc on the Roberts Court is 71% compared to 44% among the moderate/liberal bloc.  This 27 point ideological divide in Chamber cases is more than double what it was during either the Rehnquist Court, when it was 61% to 48%, or during the Burger Court, when it was 49% to 37%.[8]

The ideological divide on the Roberts Court is even more striking in close cases—those decided by a five‐Justice majority.  Since early 2006, the Chamber has been successful in 76% of close cases (19 of 25).  In close cases, when a Justice’s vote matters the most, support for the Chamber’s position from the Court’s conservative bloc is overwhelming.  The conservative bloc’s average level of support for the Chamber’s position in close cases on the Roberts Court has been 83%, compared to just 16% from the moderate/liberal bloc.  As a point of reference, during the last 11 years of the Rehnquist Court (from 1994 to 2005), the Chamber succeeded in 64% of close cases (9 of 14), with a much narrower ideological divide of 68% to 31%.

In these close cases, Chief Justice Roberts and Justice Alito have become the Chamber’s strongest champions.  Chief Justice Roberts has taken the Chamber’s side 84% of the time, while Justice Alito has been even more consistent, following the Chamber’s position in 92% of close cases.  It speaks to just how well the Chamber is doing that among the Court’s conservatives it is actually Justice Antonin Scalia who is the least likely to support the Chamber in close cases, although he still does so 76% of the time.

It is also significant that under Chief Justice Roberts the number of five-Justice decisions has also increased as a percentage of total Chamber cases.  The Roberts Court has seen 28% of the Chamber cases (25 of 88) closely decided, a 10 point jump from the Rehnquist Court study period (18%, 14 of 80). Thus, not only is the Roberts Court more greatly divided ideologically in close Chamber cases than it was during the Rehnquist Court, but it is also sharply divided more often.

In sum, the October 2011 Term yet again demonstrates the roaring success the U.S. Chamber of Commerce has had before the conservative Justices on the Roberts Court.

UPDATE: To clarify, our study of the Chamber’s success during the October 2011 Term excludes American Tradition Partnership, Inc. v. Bullock, in which the Supreme Court, relying on Citizens United, summarily reversed a Montana Supreme Court decision upholding a state campaign finance law that limited independent campaign expenditures by corporations.  While the case is certainly a “victory” for the Chamber – it argued for summary reversal in an amicus brief at the certiorari stage – our study of the Chamber’s success before the Supreme Court is limited to cases decided by the Supreme Court on the merits after oral argument.  So this Chamber “victory” falls outside the scope of cases considered as part of our study, hence our score of 7-0 rather than 8-0.

[1] The Chamber participated in four additional cases it classified as “other,” and one additional case where it filed on behalf of neither party, classifying the decision in that case as “decided.” See 2011 Term – CASES OF INTEREST TO BUSINESS, available at http://www.chamberlitigation.com/scotus/2011%20Term.

[2] The four dissenting Justices, however, took the Chamber’s position that if the mandate fell, the entire Affordable Care Act should fall.

[3] As noted in our prior study, The Roberts Court and Corporations: The Numbers Tell the Story, our examination of cases during the Roberts Court begins when Justice Samuel Alito took the bench in January 2006.

[4] Our previously published study of the Rehnquist Court, Open for Business: Tracking the Chamber of Commerce’s Supreme Court Success Rate from the Burger Court through the Rehnquist Court and into the Roberts Court, ran from the October 1994 Term through the October 2004 Term (June 2005), a stable period during which there were no changes in Court membership.

[5] Our previously published study of the Burger Court, A Tale of Two Courts: Comparing Corporate Rulings by the Roberts and Burger Courts, examined the last five Terms of that Court, a stable period from the time Justice Sandra Day O’Connor joined the Court in 1981 until the first member of the Court’s current conservative majority, Justice Antonin Scalia, joined the Court in 1986.

[6] Sri Srinivasan & Bradley W. Joondeph, Business, the Roberts Court, and the Solicitor General: Why the Supreme Court’s Recent Business Decisions May Not Reveal Very Much, 49 Santa Clara L. Rev. 1103 (2009). http://digitalcommons.law.scu.edu/facpubs/32/

[7] Adam Winkler, The Anti-Obama Court?, Huffington Post, June 22, 2012. http://www.huffingtonpost.com/adam-winkler/supreme-court-obama_b_1619369.html

[8] Although easy classification is more difficult on the Burger Court, we identify the “conservative” bloc as including Chief Justice Burger and Justices O’Connor, Rehnquist, and Powell, and the “moderate/liberal” bloc as including Justices Marshall, Blackmun, Brennan, Stevens, and White.