Adam Liptak's must-read, front-page story in this past Sunday's New York Times examines in significant and compelling detail the increasingly favorable disposition of the Supreme Court under Chief Justice John Robert towards corporate interests, highlighting a newly released empirical study by Constitutional Accountability Center (CAC) that tracks the success of the U.S. Chamber of Commerce before the Court over most of the last 30 years.
Great as Liptak's story is, it doesn't come close to conveying the richness of the data in three studies we have now released on the Chamber's success before the Supreme Court. Collectively, these studies document: (1) that the Chamber's success rate before the Court has risen in straight-line progression from 43% during our study of the Burger Court, to 56% during our study of the Rehnquist Court, to 68% during our study of the Roberts Court; and (2) the emergence, for the first time in the Roberts Court, of a stark ideological divide on the Supreme Court in business cases. In our study of the Roberts Court, the conservative bloc of the Court favored the Chamber position 74% of the time, compared to 43% of the time for the moderate/liberal bloc. This 31-point difference is nearly triple what we found in our study of the Rehnquist Court and the Burger Court.
Nowhere is the conservative bloc's support for the Chamber more apparent -- or more important -- than in close cases decided by a five-Justice majority. In such cases, our study found that the conservative bloc of the Roberts Court supported the Chamber position 85% of the time. Justice Alito, the most pro-Chamber Justice, supported the Chamber position an astonishing 100% of the time in these close cases. Moreover, during the Roberts Court, the number of close cases has jumped to 32% of all Chamber cases, compared to just 18% during the Rehnquist Court. (We have some nice graphs of all these numbers here).
So what are we to make of these numbers? First, it is clear that the Court's bitterly-divided, 5-4 decision in Citizens United v. FEC, which allows corporations to spend unlimited sums to elect candidates of their choosing, was not an isolated ruling. The biggest story of the Roberts Court, so far at least, is the Court's rulings for corporate America and its new polarization on these subjects.
Second, as put bluntly in the kicker quote by the Chamber's Robin Conrad in the Times' story: "there has been a return on investment, not to sound too crass." Crass, but true. As CAC documents in our report A Capitalist Joker: the Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law, the Chamber's effort to move its agenda through the courts stems from a memo written in 1971 by soon-to-be-Justice Lewis Powell, who advised the Chamber of Commerce to take advantage of a "neglected opportunity in the courts." That campaign is indeed paying huge dividends for the Chamber in the Roberts Court.
Finally, it is clear that in this area in particular, Chief Justice Roberts has failed so far in his own test of what constitutes a great Chief Justice. In an interview shortly after being confirmed as Chief Justice, John Roberts told Jeffrey Rosen that he believed his success as Chief Justice could be measured by his ability to get his colleagues to speak in one voice in unanimous or nearly-unanimous opinions. But, as our studies document, the Court under Chief Justice Roberts' leadership has trended in the exact opposite direction: a court that had previously spoken in one voice in business cases has become much more sharply divided along ideological lines. This may be great news for the Chamber, which has won some sweeping victories in the Roberts Court, including Citizens United, but it is bad for the Court as an institution and for the nation as a whole.
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