Business, the Roberts Court, and the Solicitor General. A Further Exploration

BRADLEY W. JQONDEPH

Almost eight years into John G. Roberts’s tenure as chief justice, a persistent theme in assessments of the Roberts Court is that it has systematically favored the interests of American business.[1] As Dean Erwin Chemerinsky recently claimed, “The Roberts court is the most pro-business court since the mid- 1930s,” a tendency that “helps understand it far more than traditional liberal and conservative labels.”[2] But testing the veracity of this claim is a complicated task. As a threshold matter, it is unclear whether the question—framed as whether the Roberts Court is “probusiness”—makes sense on its own terms. Not only might the probusiness thesis cast the matter at too high a level of generality, but the business valence of the Court’s decisions is often unclear, especially when firms are on each side of a dispute.[3] More fundamentally, even if we set these definitional issues aside, there are several methodological challenges to testing the question empirically.

Consider one widely cited statistic: the Roberts Court has ruled in favor of the outcome advocated by the Chamber of Commerce’s National Litigation Center in nearly 70 percent of the cases in which the Chamber has participated.4 This is true,5 but it captures only part of the relevant picture. Most obviously, it fails to account for the relative significance of the cases that the Chamber has won and lost, or what the Court has actually said in those decisions.6 This compression of complex, multifaceted judicial decisions into ones or zeros—here, outcomes favoring or disfavoring business litigants—means that we should take findings like this with a grain of salt.

By the same token, though, rejecting wholesale any outcome-based, statistical analysis of Supreme Court decision making would be an overreaction. By coding decisions as a win or a loss for a given constituency, and by weighting each case equally, these investigations reduce the potential for researcher bias. They reflect a calculated trade-off, sacrificing finer detail in observation for greater objectivity in the collection of data. And this objectivity in data collection, along with adherence to various other research protocols, permits investigators to produce studies conforming to a core requirement for scientific evaluation: the capacity for replication.7

Because these trade-offs are largely unavoidable in the statistical study of Supreme Court decisions, most of the limitations inherent in this approach have been thoroughly canvassed elsewhere.8 But there is another important methodological problem that many investigators have failed to appreciate fully: the potential in the Supreme Court, 97 Minn. L. Rev. 1431, 1435 (2013); Thomas A. Lambert, The Roberts Court and the Limits of Antitrust, this volume.

  • 4 See Doug Kendall & Tom Donnelly, Not So Risky Business: The Chamber of Commerce's Quiet Success before the Roberts Court—An Early Report for 2012-2013, Constitutional Accountability Center, May 1, 2013, available at http://theusconstitution.org/text-history/ 1966/not-so-risky-business-chamber-commerces-quiet-success-roberts-court-early-report (last accessed February 18, 2016) (reporting that, “since John Roberts took over as ChiefJustice and Justice Samuel Alito succeeded Justice Sandra Day O’Connor, the Chamber has prevailed in 69% of its casers overall”). See also Franklin, supra note 1, at 1; David L. Franklin, What Kind of Business-Friendly Court? Explaining the Chamber of Commerce's Success at the Roberts Court, 49 Santa Clara L. Rev. 1019, 1024 (2009) (computing the Chamber ’s win rate as 69.8 percent as of the spring of 2009).
  • 5 The precise figure, as of the conclusion of the 2011 Term, is 69.6 percent. See Table 3 infra.
  • 6 See Barry Friedman, Taking Law Seriously, 2 Perspectives on Pol. 261, 266 (2006) (“Particularly when it comes to the Supreme Court, which repeatedly tells us that it is not generally in the business of error correction, it is the opinions [rather than the outcomes] that matter most.”).
  • 7 See Lee Epstein & Gary King, The Rules of Inference, 69 U. Chi. L. Rev. 1, 38 (2002) (“Good empirical work adheres to the replication standard: another researcher should be able to understand, evaluate, build on, and reproduce the research without any additional information from the author.”).
  • 8 See Friedman, supra note 6.

for selection bias in the questions the Court resolves on the merits. For several reasons, the issues on which the Court grants review may not be neutral with respect to the object of inquiry. The substantive content of the questions the Court decides depends, among other things, on the issues created or left unresolved by prior Supreme Court decisions, the statutes Congress enacts, the strategic decisions of litigants, and the nature of lower court decision making. As a result, the universe of questions reaching the Court may be skewed or biased. And this means there is no clear baseline against which to measure the success of a particular constituency. As pertinent here, there is no benchmark for how often the Chamber of Commerce should prevail if the Roberts Court were “business neutral"

One solution to this problem is simply to avoid it—to answer a different (but related) question. Instead of examining the success of business in isolation, we can compare its success to that of another litigant, one whose significance at the Supreme Court is reasonably well established. Specifically, we can compare the records of the Chamber of Commerce and the Office of the Solicitor General, focusing principally on cases in which the two have taken opposing positions. Of course, this substitutes one baseline problem for another: the Solicitor General’s success at the Court is not a constant; it, too, fluctuates over time. Still, such a comparison offers some context with which to gauge the Chamber’s success. Moreover, the Chamber’s success relative to the federal government is interesting in its own right, another window into the Court’s present inclinations.

With these thoughts in mind, this chapter presents a simple statistical analysis of the full universe of Roberts Court decisions in which the Chamber of Commerce has participated, revising and extending a similar investigation that I coauthored in 2009.[4] It revises that study by expanding the data set to include the four most recent terms of Supreme Court decisions, through September 30, 2012. And it extends that study by including not just the Court’s decisions on the merits, but also those on petitions for writs of certiorari.

As with the prior investigation, the modest number of decisions precludes many robust conclusions. Nevertheless, the results are interesting. Overall, the Chamber’s success rate in cases decided on the merits has exceeded the Solicitor General’s in business-related cases. Given the Solicitor General’s tradition of success at the Court, this constitutes circumstantial evidence that business litigants have fared reasonably well before the Roberts Court. That said, there are some important points to bear in mind. First, when the Chamber and the Solicitor General have taken opposing positions, the Roberts Court has favored the Chamber, but only by a slim margin. Second, the Roberts Court has actually favored the federal government over the Chamber when the Solicitor General has participated as amicus curiae (rather than as a party) —and it has done so decidedly in the disposition of certiorari petitions. Third, and perhaps most interesting, the Court’s tendency to side with the Solicitor General over the Chamber has declined noticeably during President Obama’s tenure in office. Indeed, since January 2009, the Court has sided with the Chamber by a substantial margin in cases in which the Chamber and the Solicitor General have been opposed.

These findings thus suggest a noteworthy (if not terribly surprising) evolution of the Roberts Court in business-related cases. During the Obama administration, the Chamber and the federal government have clashed more frequently than during the Bush administration. And perhaps as a result, the interests of business have gained at the Court relative to the Solicitor General. Again, this does not establish that the Roberts Court is necessarily probusiness. But it reveals a shift in the comparative standing of arguably the two most influential litigants currently appearing before the Court.

  • [1] See, e.g., Confirmation Hearing of the Nomination of Elena Kagan to Be Associate Justice ofthe Supreme Court: Hearing before the S. Comm. on the Judiciary, 111th Cong., 2010 WL 2831374(July 20, 2010) (statement of Senator Whitehouse) (the “current Supreme Court has over andover rewritten our law consistently in big corporations’ favor”); Alliance for Justice, The CorporateCourt: When the Court Sides with Special Interests Who's Protecting Yours?, available at http://www.afj.org/connect-with-the-issues/the-corporate-court/ (last accessed April 17, 2011); David L.Franklin, American Constitution Society Issue Brief: Why Does Business (Usually) Win in the RobertsCourt, February 22, 2011, available at http://www.acslaw.org/files/Franklin%20Issue%20Brief%20Final.pdf (last accessed April 24, 2011); Adam Liptak, Corporations Find a Friend in the SupremeCourt, N.Y. Times, May 4, 2013, at B1. First Monday, N.Y. Times, October 3, 2010; Adam Liptak, TheRoberts Court: Justices Offer Receptive Ear to Business Interests, N.Y. Times, December 19, 2010, at A1.
  • [2] Adam Liptak, Corporations Find a Friend in the Supreme Court, N.Y. Times, May 4, 2013, at B1.
  • [3] See Jonathan H. Adler, Getting the Roberts Court Right: A Response to Chemerinsky, 54 WayneL. Rev. 983, 1004 (2008); Lee Epstein, William M. Landes & Richard A. Posner, How Business Fares
  • [4] See Sri Srinivasan & Bradley W. Joondeph, Business, the Roberts Court, and the SolicitorGeneral: Why the Supreme Court's Recent Business Decisions May Not Reveal Very Much, 49 SantaClara L. Rev. 1103 (2009).
 
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