Co-authored with Tom Donnelly
Last week, the Supreme Court wrapped up its final arguments in what has so far been a monumental term. Understandably, most commentators have focused on the blockbuster civil rights cases on the Court's docket - cases addressing affirmative action, voting rights, and marriage equality. However, the interest in these high-profile cases has obscured another emerging storyline - one that has potentially far-reaching consequences for workers, consumers, and ordinary Americans nationwide: the Court's business-heavy docket, and the U.S. Chamber of Commerce's continued success before the Roberts Court.
This term, the Chamber has filed a whopping eighteen briefs overall, typically acting as an "amicus" or "friend of the Court." With the Court's dwindling docket - it's likely to decide only 76 cases this term - that means the Chamber is participating in almost a quarter of the Court's decided cases, a staggering percentage. As a point of comparison, in the early 1980s - in the twilight years of the Burger Court - the Court heard twice as many cases as it does now, between 150 and 160 per term. At the same time, the Chamber filed in fewer of them - an average of seven per term or roughly 4% of the Court's cases overall. Therefore, even as the Court is now hearing far fewer cases, the Chamber is participating in a greater number of them.
And this is no accident. Instead, it's a reflection, in part, of a concerted effort by the Chamber to shape the Court's docket, an effort that has been extremely successful to date. As SCOTUSblog reported last month, the Chamber filed the most amicus briefs at the cert. stage - in other words, supportive briefs urging the Court to hear a given case - of any private organization between May 2009 and August 2012. And during the SCOTUSblog study period, the Chamber had the highest success rate of any of the most active organizations - with the Court granting 32% of the Chamber's cases overall. Therefore, the Chamber isn't simply participating in cases that the Court has already decided to hear. It's also working aggressively to shape the Court's docket itself.
Finally, and most importantly, the payoff for all of these efforts has been enormous, as the Chamber continues to win the vast majority of its cases before the Roberts Court. Take the current term. Although more than half of the Chamber's cases are still pending, the Chamber is already off to a strong start, winning six of its cases so far and losing only one. This success rate is a minor improvement in the Chamber's already spectacular overall track record before the Roberts Court to date.
All told, since John Roberts took over as Chief Justice and Samuel Alito replaced Justice Sandra Day O'Connor, the Chamber has prevailed in 69% of its cases overall, including 79% of its closely divided cases - that is, cases decided by a five-justice majority. And, in these close cases, when a justice's vote matters the most, support for the Chamber's position from Chief Justice Roberts and the conservative bloc has been overwhelming, with the Court's conservatives supporting the Chamber's position 82% of the time. Friends of the Court, indeed.
In the end, it's easy to overlook the Court's business docket. Many of the cases are obscure and, at times, technical. Nevertheless, stripped of legalese, the stakes involved are often enormous.
Take the Chamber cases that the Roberts Court has already decided this term. By siding with the Chamber, the Court has made it more difficult for victims of alleged human rights violations to hold corporations accountable for their alleged abuses abroad, more difficult for employees to join together to seek back-pay from an employer for alleged violations of federal labor law, and more difficult for customers to challenge their cable company for higher prices linked to alleged antitrust violations.
Furthermore, if the Court follows the Chamber's lead in the business cases still pending, it will close the courthouse doors to some patients injured by generic drugs, make it harder for employees to win Title VII retaliation claims after complaining about blatant discrimination, and undermine local efforts to strike the right balance between protecting the environment and promoting development. In addition, if it sides with the Chamber, the Court will make it easier for large companies to use arbitration agreements to block collective efforts to hold those companies accountable for their alleged misdeeds.
Needless to say, the remaining months of the Court's term will be extremely important for the Chamber - and for ordinary Americans. We'll be watching, and we hope that you will be, too.
Read the full CAC interim report Not-So-Risky Business: The Chamber of Commerce's Quiet Success Before the Roberts Court - An Early Report for 2012-2013.
(This post is also cross-posted on Text and History).