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Tracking the U.S. Chamber of Commerce at the Roberts Court

March 12, 2014

Since 2010, Constitutional Accountability Center has been tracking the U.S. Chamber of Commerce’s record before the Supreme Court, closely analyzing each case with Chamber involvement and publishing our findings.  These reports – typically released at the end of each Term – have documented the Chamber’s rather astounding success before the Roberts Court.  For instance, since the beginning of October Term 2011, the Chamber has won a staggering 88% of its cases overall (28 wins and 4 losses).

Today, we’re expanding our Chamber work to include a new resource page on our website: theusconstitution.org/corporate-court.  This page is intended to serve as the go-to destination for anyone interested in the Chamber’s up-to-date record before the Supreme Court, including the Chamber’s win-loss record for the current Term, the Chamber’s win rate in the Roberts Courts versus comparable periods in the past, and the current Justices’ voting records in cases with Chamber involvement.  Moving forward, we will update these statistics each time the Court issues a new ruling in a Chamber case, providing fresh statistics as soon as we’re able to digest each ruling.  While we will continue to provide a final report at the end of each Term, we hope that this new page will serve as a useful resource for those covering the Court, providing additional context to the many important business cases that the Court decides each Term.

This Term, the Chamber is involved in a total of 16 cases and has already compiled a record of 7 wins and 1 loss.  However, as is usually the case at this point in any given Term, the biggest Chamber decisions still remain, and it is thus too early to reach any firm conclusions about the Chamber’s overall success in the current Term.  This is hardly a surprise.  For instance, just last Term, it wasn’t until June that the Roberts Court unleashed a series of sharply divided business rulings that helped make the Court’s pro-business track record one of the defining stories of the Term.  The same may very well happen this year.  Only time will tell.

For instance, in a pair of important environmental cases yet to be decided, the Roberts Court will determine the scope of the EPA’s authority to address important problems like climate change (Utility Air Regulatory Group v. EPA) and interstate air pollution (EPA v. EME Homer).  Depending on how the Court rules, these cases may very well make this Term, to quote environmental law superstar Richard Lazarus, “the most significant term ever for the Clean Air Act.”  Turning to important protections for small investors, in Halliburton v. Erica P. John Fund, the Court must decide whether to accept the Chamber’s invitation to overturn a quarter-century of precedent and, in so doing, cut back on the ability of investors to join together and hold businesses accountable for alleged securities fraud.  It’s little wonder that Professor Ronald Mann has described this case as potentially “one of the most important business-law cases of the decade.”  Finally, in NLRB v. Noel Canning, the Roberts Court will address the scope of the President’s recess appointments power.  If it heeds the Chamber’s call, it may well issue a decision that unsettles centuries of presidential practice and makes it easier, even in a post-nuclear option world, for the opposing party in the Senate to block a President’s preferred nominees to important posts and sow the seeds of even deeper dysfunction in Washington.

With these cases in mind and the end of the Term just over three months away, the question remains, will this be yet another big Term for big business?  We will know soon enough.

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