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A Big Term for Big Business

June 25, 2013

Following yesterday’s trio of huge wins for the business community, the Roberts Court wrapped up its business cases today with a 5-to-4 ruling in Koontz v. St. Johns River Water Management District, an important victory for the business community that divided along classic ideological lines.  Even in a Term largely dominated by blockbuster cases on affirmative action, voting rights, and marriage equality, the Roberts Court’s business-heavy caseload has emerged as one of this Term’s biggest stories – and one that Constitutional Accountability Center has been tracking closely since 2010. 

Although often flying under the radar, the Court’s business cases typically have far-reaching consequences for ordinary Americans.  And, in recent years, perhaps no organization has been more active in shaping the Court’s business docket and pushing the Court in a pro-business direction than the U.S. Chamber of Commerce.

This Term, the Chamber participated in nearly a quarter of the cases decided by the Roberts Court, filing a whopping 18 amicus briefs overall.  All told, it racked up an impressive record of 14 wins and 3 losses – or an 82% winning percentage.[1]  That means that, since Samuel Alito succeeded Sandra Day O’Connor on the Court in January 2006, the Chamber has won 70.5% of its cases overall (74 out of 105), compared with only 43% in the late Burger Court (15 of 35 from 1981-1986) and 56% in the stable Rehnquist Court (45 of 80 from 1994-2005).

In addition, the Chamber was undefeated in this Term’s most controversial business cases – those decided by five-Justice majorities – with the Court’s five conservatives voting with the Chamber in all of them.  Taken together, these cases will greatly affect the lives of countless Americans nationwide. 

For instance, consider today’s important 5-to-4 Chamber victory in Koontz.  There, the Court’s conservatives made it more difficult for state and local governments to fashion policies that strike the right balance between protecting the environment and promoting development.  Or, consider yesterday’s trio of 5-to-4 Chamber victories dealing with employment discrimination and drug safety.  In Vance v. Ball State University, the Court’s conservatives made it more difficult for employees to hold their employers accountable for alleged harassment.  In University of Texas Southwestern Medical Center v. Nassar, they made it harder for employees to win retaliation claims after complaining about blatant discrimination.  And, in Mutual Pharmaceutical Co. v. Bartlett, they made it harder for anyone harmed by a generic drug’s side-effects to recover damages from that drug’s manufacturer under state law.  These cases followed closely on the heels of the business community’s big win last week in American Express v. Italian Colors Restaurant – yet another business case decided by an ideologically divided Court.  There, the Court’s conservatives aided the business community’s push to use arbitration agreements to make it all but impossible for small claimants – whether they’re ordinary Americans or small businesses – to join together and bring claims in court against large companies.

Following its undefeated record in closely divided cases this Term, the Chamber has won 82% of these cases before the Court’s current conservative bloc overall (27 of 33), with the Court’s conservatives voting with the Chamber a staggering 85% of the time in these controversial cases.  This represents a massive pro-business shift, even when compared to the last eleven years of the conservative Rehnquist Court (from 1994 to 2005), which sided with the Chamber in 64% of its close cases (9 of 14) and whose conservatives sided with it 68% of the time.  

Finally, the Court’s Chamber cases have more frequently divided the Roberts Court than its immediate predecessor.  Since Justice Alito joined the Court in 2006, nearly a third (31%) of the Court’s Chamber cases have closely divided the Justices (33 out of 105), compared with just 18% in the stable Rehnquist Court (14 of 80, from 1994 to 2005).  Furthermore, the percentage of closely divided Chamber cases increased to 47% this Term, up from 19% of the Court’s Chamber cases in October Term 2010 and 29% in October Term 2011.

In the end, it may be easy to overlook the Court’s business docket.  Many of those cases are obscure and, at times, technical.  Nevertheless, stripped of legalese, the stakes involved are often enormous.  And with so much at stake this Term, it’s critical that these important cases – and Big Business’s string of important victories – don’t get buried in the end-of-Term avalanche.

[1] We followed the Chamber in scoring Decker v. Northwest Environmental Defense Center as neither a win nor a loss for the Chamber.