The Chamber of Commerce and the Solicitor General in the Roberts Court

To measure the relative success of the Chamber of Commerce and the Solicitor General before the Roberts Court, I created two unique data sets. Together, they comprise the full universe of cases decided by the Supreme Court in which the

Chamber of Commerce has participated (either as a party or as amicus curiae) from the Court’s 2005 October Term through its 2011 October Term—that is, from September 29, 2005 (when John Roberts became chief justice) to September 30, 2012.41 The first data set includes those cases decided by the Court on the merits. I coded these cases for (l) whether the Solicitor General also participated; (2) if so, whether that participation was as a party or as amicus curiae; (3) which administration the Solicitor General represented when the office filed its brief; (4) whether the Chamber and the Solicitor General advocated the same or opposing positions; and (5) whether the Court decided the case in favor of business interests (i.e., the position advocated by the Chamber).42

  • 41 When the Chamber participated as amicus, it often filed its own brief, but sometimes it joined briefs filed by multiple organizations.
  • 42 Coding of the decisions was generally straightforward, but four particular cases posed some difficulty: General Dynamics Corp. v. United States, 131 S. Ct. 1300 (2011), Jones v. Harris Associates L.P., 130 S. Ct. 1418 (2010), Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008), and Rapanos v. United States, 547 U.S. 715 (2006).

At issue in General Dynamics was the proper remedy in a case in which, in response to a defendant’s prima facie valid defense to the government’s allegation of contractual breach, the court dismisses the action to protect state secrets. Noting that “[n]either side will be entirely happy with the resolution we reach today,” 131 S. Ct. at 1908, the justices held that neither party was entitled to relief—that in such cases the court should simply leave the parties as they currently stand. Because the Court’s holding was essentially halfway between those advocated by the Chamber and the Solicitor General, I coded the decision as half a win for each.

In Harris was the proper standard for assessing alleged violations of §36(b) of the Investment Company Act with respect to the compensation of investment advisors. The Court rejected the Seventh Circuit’s approach, which the Chamber formally urged the Court to affirm but which even the respondent refused to defend. At the same time, the Court also rejected the approach urged by the petitioner, adopting a standard that makes it quite difficult for aggrieved investors to establish a breach of fiduciary duty. Thus, I coded the decision as favorable to business.

In Sprint/United, the Court held that the court of appeals had mistakenly understood the district court to have applied a per se rule excluding the testimony of “similarly situated” individuals who had no role in the allegedly discriminatory employment action. The Court held that such testimony was neither per se inadmissible nor per se inadmissible, and vacated the court of appeals’s decision ordering that the testimony be admitted in the case under review. Because the result was favorable to the employer—a remand for reconsideration of whether the testimony should be excluded—I coded it as favorable to business.

Rapanos involved the scope of the Army Corps of Engineers’ jurisdiction to regulate “navigable waters” and “waters of the United States” under the Clean Water Act. A five-justice majority reversed the judgment below, which had upheld the Corps’s assertion of jurisdiction, but they split on the proper rationale. Four justices would have held that the terms include “only relatively permanent, standing or flowing bodies of water” But Justice Kennedy, concurring in the judgment only, adopted a broader standard, stating that the Corps’s jurisdiction extended to a water or wetland possessing a “ 'significant nexus’ to waters that are or were negligible in fact or that could reasonably be so made.” Because the five-justice majority rejected the standard proposed by the United States, vacated the decision below, and generally narrowed the definition of waters covered by the Clean Water Act, I coded the decision as a victory for business.

The second data set includes every Roberts Court decision disposing of a petition for a writ of certiorari where the Chamber participated at the certiorari stage, either as a party or as amicus curiae. I coded these decisions for (1) whether the Solicitor General also participated; (2) if so, whether that participation was as a party or as amicus curiae; (3) whether the Solicitor General’s participation had been expressly invited by the Supreme Court; (4) whether the Chamber and the Solicitor General advocated the same or opposing positions; and (5) whether the Court granted or denied the petition.43

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