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How the Big Business Cases Became the Big Story This Term

June 27, 2013

It’s clear after this week’s startling string of four 5-4 wins for Big Business that the Supreme Court’s rulings in favor of corporate America, usually as represented by the U.S. Chamber of Commerce, have become one of the biggest stories of this Supreme Court Term.

With most eyes resolutely focused upon cases involving hot-button issues such as marriage equality, affirmative action and voting rights, the emergence of these business cases has caught many observers by surprise.  But it should surprise no one at this point, for a simple reason: As opposed to issues like the dismantling of affirmative action, where the Court’s conservative bloc is divided and has trouble agreeing about how far and how fast to take the law, the Court’s conservatives are completely united and moving in the same direction in business cases.  Corporate America wins; workers, consumers, mom and pop shops, and other individual Americans asserting their rights in federal court lose.  Again and again.

This is documented by empirical evidence.   For example, CAC has done a series of studies on the success rate of the Chamber of Commerce as an amicus participant before the Supreme Court.  These studies show that the Chamber has an overall success rate of 70% since Chief Justice Roberts and Justice Samuel Alito joined the Court in 2006, with the Chamber going an astounding 88 percent (21 wins, 3 losses) over the past two Terms.  Even more striking is the Chamber’s success in cases decided by 5-4 or 5-3 votes—cases in which just one defection from the majority would have swung the case against Big Business.   But in every one of the ten closely-divided cases this Term and last, the conservative Justices held the line, delivering win after win for the Chamber.

One possible reason why the Court’s conservative bloc has been so cohesive is that these business cases typically fly beneath the radar of the Court-watching public.  While these cases often involve heart-wrenching stories and compelling victims, the legal issues tend to be technical and sometimes narrow. Stories on these cases, if written at all, typically get relegated to the business section, not the front page coverage garnered by hotter topics.  Cohesion may be easier with the public focused elsewhere.

This is changing.  The magnitude of the Chamber’s winning streak over the past two Terms has gotten the attention of leading politicians, editorial writers and Supreme Court commentators.   With this increased focus on these cases, it will be interesting to watch whether the conservative bloc is able to maintain this remarkable cohesion in future cases. 

Regardless of what happens from here onward, the Supreme Court’s rulings in favor of corporate America has become one of the biggest stories, if not THE biggest story, of the Supreme Court under the leadership of Chief Justice John Roberts.

For a more detailed discussion,  see Not So Risky Business: The Chamber of Commerce’s Quiet Success Before the Roberts Court—An Early Report.