The first decade of the Roberts Court: good for business interests, bad for legal accountability.

• Author: Gorod, Brianne J.
• Position: Symposium: Business in the Roberts Court

CONTENTS INTRODUCTION I. THE CHAMBER'S SUCCESS A. The Roberts Court B. John Roberts II. THE PRO-BUSINESS COURT: WHAT IT MEANS A. Class Actions B. Arbitration C. Preemption III. LOOKING AHEAD CONCLUSION INTRODUCTION

When John Roberts was nominated to serve as Chief Justice, he was asked whether he disproportionately supported business interests while serving on the D.C. Circuit. (1) According to Roberts, that assertion was "wrong." (2) As lie explained, "I know that I've ruled against corporations on a regular basis on the D.C. Circuit. I think I just saw a study ... that suggested I tended to rule against corporations more than the average judge.... I like to think [my votes] depend[] upon the particular law and the particular facts." (3)

Ten years later, one of the most significant debates about the Court that Roberts leads is whether it is pro-business, and what it even means to be pro-business. (4) In this Article, I argue that the answer to the first question is yes--both the Roberts Court and John Roberts himself are decidedly pro-business. And while that term can have many meanings, one of the most important is quite simple: a pro-business Court makes it more difficult for individual consumers and employees to hold businesses accountable when they violate the law. And that is exactly what this Court has too often done, as Justice Elena Kagan acknowledged when she was asked whether the current Court is pro-business. As she explained it, the current Court has "made it more difficult for injured persons to come to court and to use federal and state law to hold business to account for injuries that they've done." (5)

Since 2010, my organization, the Constitutional Accountability Center, has been studying, as a proxy for the success of business interests before the Roberts Court, the Chamber of Commerce's success in merits cases in which it participates as either a party or an amicus. The results of that analysis are straightforward: the Chamber of Commerce has been remarkably successful. Indeed, it appears to have been more successful before the Roberts Court than it was before either of the two Courts that preceded it. (6) After discussing those results, I consider one of the most significant implications of that success: the greater difficulty individuals face in holding businesses accountable in court when they violate the law. Finally, I conclude by providing some thoughts on what lies ahead for the Supreme Court and the business docket in the near term.

1. THE CHAMBER'S SUCCESS

   The U.S. Chamber of Commerce is the "world's largest business organization representing the interests of more than 3 million businesses of all sizes, sectors, and regions." (7) The litigation wing of the U.S. Chamber, the National Chamber Litigation Center, is, by its own account, "the voice of business in the courts" and regularly files in the Supreme Court on issues of interest to the business community, even where no business is a party to the case. (8)

   Since 2010, the Constitutional Accountability Center (CAC) has used the Chamber's success in merits cases at the Court--as either party or amicus--as a window into determining how business interests have fared before the Roberts Court. (9) And at the conclusion of Roberts's first decade on the Court, CAC released a report designed to answer just that question based on the data produced by looking at every case in which the Chamber participated since Justice Samuel Alito joined the Court in early 2006--a universe of 142 cases. (10) In that same report, CAC also looked at the Chamber's success over time, thus providing a basis for comparing its success before the Roberts Court to its success in prior periods. To do that, CAC examined the last five terms of the Burger Court, from Justice Sandra Day O'Connor's joining the Court in 1981 until Justice Antonin Scalia joined in 1986, as well as the last eleven terms of the Rehnquist Court, from the beginning of October 1993 until the end of the 2004 October Term in June 2005. (11)

   To be sure, the results of this study provide only part of the story of business at the Roberts Court--they do not, for example, reveal anything about the types of questions that the Court is choosing to answer, or about the impact of the decisions the Court is reaching. Nor do they necessarily capture every single case in which business may have an interest. As Jonathan Adler has pointed out, the Chamber "at times ... stays its hand, either because its membership is divided or it has determined limited resources are better spent in other cases--perhaps because the likelihood of winning a given case is too remote," (12) which means, in his view, that "focusing solely on cases in which the Chamber participates may produce an incomplete picture." (13) Nonetheless, the Chamber's success provides at least some indication of how business has fared before this Court. Indeed, unless there is some reason to think that the Chamber is systematically more likely to participate in cases in which it is likely to win now than it was in the past, its success over time should provide a good indication of how the Roberts Court compares to those that preceded it, as well as how John Roberts compares to other Justices, past and present.

   1. The Roberts Court

      CAC's review of the Chamber's success before the Court leaves no doubt: the Chamber is remarkably successful. As Torn Donnelly wrote in the report examining how the Chamber has fared during the first decade of the Roberts Court, "a cohesive five-Justice majority on the Court ... has produced victories for the Chamber's position in the vast majority of its cases." (14) Moreover, the Chamber is more successful now than it has been in the past. Indeed, the figures are striking. The Chamber enjoyed a sixty-nine percent success rate during the first decade of the Roberts Court, a success rate markedly higher than it enjoyed during the periods of the Rehnquist and Burger Courts that were also studied. (15) Strikingly, during the five-year period of the Burger Court that was studied, the Chamber won fifteen of thirty-five cases, for a winning percentage of only forty-three percent. (16) While the Chamber fared better during the Rehnquist Court, it still did not perform as well as it is currently performing before the Roberts Court; the Chamber's winning percentage during the eleven terms of the Rehnquist Court was fifty-six percent, winning forty-five of eighty cases. (17)

      The cause of the Chamber's current success is also interesting: the Chamber is not benefitting from diverse coalitions of justices supporting it in different cases. Rather, there is (as most current Court watchers would suspect) a cohesive five justice majority that consistently votes for the Chamber. As Donnelly explained, "the members of the Court's conservative majority are tightly bunched in their overall support for the Chamber." (18) Indeed, even Justice Anthony Kennedy, the conservative Justice most likely to vote with the Court's more progressive members, voted for the Chamber seventy-two percent of the time, just below the Justice with the greatest support for the Chamber (i.e., Justice Samuel Alito, who voted for the Chamber seventy-four percent of the time). (19)

      This is not to say, of course, that the Court's conservative and relatively progressive Justices never see eye to eye on cases in which the Chamber has an interest. After all, the Court's more progressive justices collectively "cast nearly half of their votes (47%) in favor of the Chamber's position." (20) And many decisions are not divided along ideological lines, with the Court finding it relatively easy to reach a consensus on the outcome." (21) Yet in the twenty-nine percent of cases that sharply divided the Court (i.e., those decided 5-4 or 5-3), the ideological divide between the Justices is evident. (22) In the forty-one Chamber cases decided by just one or two votes, eighty percent were Chamber victories, and in those cases, the conservatives collectively voted for the Chamber seventy-nine percent of the time, while the Court's relatively progressive members only did so twenty-two percent of the time. (23) Interestingly, the ideological division during the last five terms of the Burger Court was not nearly as strong--then, there was only a twelve point divide between conservatives and liberals (49% to 37%), not the twenty-four point difference in support for the Chamber's position that exists now. (24) Likewise, during the Rehnquist Court, the difference in support between the Court's conservatives and its more liberal members was only thirteen points (61% to 48%). (25)

      Significantly, these conclusions are consistent with a comprehensive study of business's success before the Roberts Court conducted by Lee Epstein, William Landes, and Judge Richard Posner. (26) As part of their study, they looked at all Supreme Court cases decided between October Term 1946 and October Term 2011 in which a business was a party on only one side of the case. (27) Based on their examination of those cases--1,759 in total--they concluded that the Roberts Court was "much friendlier to business than either the Burger or Rehnquist Courts." (28)

   2. John Roberts

      That John Roberts is leading the most pro-business Supreme Court in the modern era is perhaps unsurprising: according to CAC's research on the Chamber's success, John Roberts himself votes for business interests far more often than he does not. (29) According to CAC's report, Roberts votes for the Chamber's position in seventy percent of all cases, making him the fourth most supportive Justice on the Court as of 2015. (30) Interestingly, his support for the Chamber climbed even higher--to eighty-three percent--in closely divided cases (second only to Justice Alito in his support for the Chamber). (31) This is consistent with Epstein, Landes, and Posner's study, which concluded that all five of the conservatives on the Roberts Court would...