A third recent example of the power of elite Supreme Court advocates to persuade the Justices of the importance of issues concerning their business clients relates to the disproportionately large number of cases in recent years in which the petitioner has been either the Norfolk & Western Railway or the Norfolk & Southern Railway. This is a far more incidental topic, but it is for that reason arguably even more telling. Notwithstanding the Court’s shrinking docket, the Court has granted five of fifteen petitions for such cases filed by Sidley Austin between 1996 and 2014.
None of these five cases, moreover, presented an especially compelling legal issue. A few were at most plausible cert candidates that would have resulted in cert denials in the hands of anyone but an extremely skilled advocate, while several were quite far-fetched. For instance, in Norfolk & Southern Railway Co. v. Sorrell, the Court held that the Missouri Supreme Court erred in allowing differing jury instructions regarding the standards of causation applicable to the defendant’s negligence and the petitioner’s negligence under the Federal Employees Liability Act. The issue was so incidental that even the petitioner, conveniently after cert was granted, sought to completely switch the question presented to one it cared about, but could not base a petition on it because it rested on a legal argument diametrically opposed to what the petitioner had argued in the lower courts.
What is most significant about these cases is not their strict holdings, but that petitioners persuaded the Court to grant review in the first place. Notwithstanding the Court’s ever-shrinking docket and correspondingly heightened standards for the Court to deem a case cert worthy, expert Supreme Court counsel repeatedly succeeded in securing review for legal issues that, while no doubt important to his clients, would hardly seem to qualify as the most pressing and important legal issues facing the nation. Yet the petitions, invariably supported by a bevy of orchestrated amici, anticipated precisely how to convince the clerks and the Justices of the need for the Court’s plenary review.
The antitrust, tort liability, and railway cases, moreover, represent just a few of the most obvious areas of law in which the private Supreme Court Bar has succeeded in persuading the Court to grant cert in a series of cases of unique interest to the business community. Other prominent examples include cases raising federal preemption and dormant Commerce Clause challenges to state regulation of business. Not only has business overcome the bias against business cases that triggered Ken
Starr’s lament in the mid-1990s, but the Bar may have even done more than achieve the parity that it was due: it has arguably achieved favorable treatment.
-  549 U.S. 158 (2007).
-  549 U.S. 158, 163 (2007) (“In briefing and argument before this Court, Norfolk has attemptedto expand the question presented to encompass what the standard of causation under FELA shouldbe, not simply whether the standard should be the same for railroad negligence and employee contributory negligence.”).
-  For examples of preemption challenges brought to Court by business petitioners, see EngineManufacturers Assn v. South Coast Air Quality Management District, 541 U.S. 246 (2004); Buckman Co.v. Plaintiffs' Legal Committee, 531 U.S. 341 (2001); United States v. Locke, 529 U.S. 89 (2000); Medtronic,Inc. v. Lohr, 518 U.S. 470 (1996); and CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993).
-  For examples of dormant Commerce Clause challenges brought to the Court by business petitioners, see DaimlerChrysler v. Cuno, 547 U.S. 332 (2006); Hunt-Wesson, Inc. v. Franchise Tax Boardof California, 528 U.S. 458 (2000); South Central Bell Telephone Co. v. Alabama, 526 U.S. 160 (1999);Oregon Waste Systems, Inc. v. Department of Environmental Quality, 511 U.S. 93 (1995); ChemicalWaste Management, Inc. v. Hunt, 504 U.S. 334 (1992); C & A Carbone, Inc. v. Town of Clarkstown, 511U.S. 383 (1994).