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Decisions on the Merits

First, in the first seven terms of the Roberts Court (from September 2005 to September 2012), the Chamber of Commerce participated in the merits briefing of 103 cases—either as a party, by filing its own amicus brief, or by joining a multiparty amicus brief.44 The Solicitor General participated in eighty of these 103 cases, twenty-one times as a party and fifty-nine times as amicus curiae. As Table 1.1 documents, the Chamber’s participation at the merits stage of Supreme Court litigation has generally increased over the life of the Roberts Court, growing from eleven cases in the 2005 October Term to a high of twenty-one in the 2010 October Term. All told, the Chamber participated in almost 27 percent of the cases that the Court slated for plenary review in the 2010 term, a remarkable figure for any litigant other than the United States.

Second, as Table 1.2 illustrates, the Chamber and the Solicitor General have opposed one another in forty-nine of the eighty cases in which they both

The data set excludes from the outcomes six cases in which the Chamber of Commerce participated as amicus curiae in the briefing on the merits: NFIB v. Sebelius, 132 S. Ct. 2566 (2012); First American Financial Corp. v. Edwards, 132 S. Ct. 2536 (2012); Kiobel v. Royal Dutch Petroleum, 132 S. Ct. 1738 (2012); Douglas v. Independent Living Ctr., 132 S. Ct. 1204 (2012); Philip Morris USA, Inc. v. Williams, 556 U.S. 178 (2009); and Warner-Lambert Co. v. Kent, 552 U.S. 440 (2008). In First American Financial and Philip Morris, the Court dismissed the writ of certiorari as improvidently granted after oral argument. In NFIB and Douglas, the Court did not reach the legal question that the Chamber had addressed in its brief. In Kiobel, the Court put over the case for reargument (with a new question presented) during the next term. And in Warner-Lambert, the justices affirmed the judgment under review by an equally divided Court (with the chief justice recused).

  • 43 This universe of cases was identified through the following three steps: (1) I initially included every case listed by the Chamber of Commerce on the NCLC’s web site (http://www.chamberlitiga- tion.com/ (last accessed February 18, 2016)) as one in which it had participated; (2) I then examined the briefs in those cases (available on Westlaw in the SCT-BRIEF database) to confirm that the Chamber had either authored or signed onto a multiparty brief; and (3) I searched Westlaw’s SCT- BRIEF database with various search terms (such as “Chamber of Commerce,” “Chamber Litigation Center,” and “Robin Conrad”) to identify cases that the Chamber had overlooked in compiling its list.
  • 44 Again, the Court did not decide two of these cases on the merits. See note 20 supra.

Table 1.1 Chamber of Commerce Participation in Cases Decided by the

Supreme Court on the Merits, October Term 2005 through October Term 2011

October Term participation

Chamber of Commerce cases granted

As a percentage of cases decided by the plenary review

As a

percentage of Court on the merits

2005

11

15.9% (N=69)

13.6% (N=81)

2006

14

20.9% (N=67)

19.2% (N=73)

2007

15

20.9% (N=67)

20.0% (N=70)

2008

13

17.6% (N=74)

16.7% (N=78)

2009

16

20.5% (N=73)

17.2% (N=87)

2010

21

26.9% (N=78)

25.0% (N=84)

2011

13

17.1% (N=70)

17.1% (N=76)

Table 1.2 The Litigation Position of the Solicitor General in Cases in Which Both the Solicitor General and the Chamber of Commerce Participated, October Term 2005 through October Term 2011

Condition

Total

Bush

administration

Obama

administration

Agreement between Chamber of Commerce and Solicitor General (total)

38.8% (31/80)

51.3% (20/39)

26.8% (11/41)

Agreement when the United States participates as a party

19.0% (4/21)

25.0% (2/8)

15.4% (2/13)

Agreement when the United States participates as amicus curiae

45.8% (27/59)

58.1% (18/31)

32.1% (9/28)

participated (61 percent). They were much more apt to disagree when the United States was a party (81 percent of such cases) than when the Solicitor General participated as amicus curiae (54 percent). Moreover, the rate at which the Chamber and the government have disagreed has grown during the Obama administration. While the Chamber and the Solicitor General endorsed the same outcome in just more than half of the cases in which they both participated during the Bush administration (51 percent), that figure has dropped to roughly

Table 1.3 Proportion of Decisions on the Merits Decided in Favor of Position Advocated by the Chamber of Commerce or the Solicitor General, October Term 2005 through October Term 2011

Condition

Success rate

Chamber of Commerce overall

69.6% (67.5/97)

Solicitor General in cases in which the Chamber of Commerce participated

62.5% (47.5/76)

Solicitor General as party in cases in which the Chamber of Commerce participated

27.5% (5.5/20)

Solicitor General as amicus curiae in cases in which the Chamber of Commerce participated

75.0% (42/56)

a fourth (27 percent) since President Obama took office. Using a simple two-tail Z test for two proportions, this difference is statistically significant at a 95 percent level of confidence.[1]

Third, the overall success rates of the Chamber and the Solicitor General in cases in which the Chamber participated were similar, with a slight edge going to the Chamber (69.6 percent for the Chamber and 62.5 percent for the Solicitor General). As Table 1.3 shows, the government was much less successful when it was a party to the lawsuit (prevailing in 27.5 percent of such cases) than when it participated as amicus curiae (75.0 percent).[2]

Fourth, as revealed in Table 1.4, the Roberts Court overwhelmingly rendered decisions favorable to business when both the Chamber and the Solicitor General supported that outcome (roughly 87 percent of all such cases). When the Chamber and the Solicitor General were opposed, the Court tended to side with the Chamber, but only by a modest margin.[3] And there was a huge

Table 1.4 Proportion of Decisions on the Merits Favorable to Business

Interests (i.e., the Outcome Supported by the Chamber of Commerce), October Term 2005 through October Term 2011

Condition

Percentage

When the Chamber of Commerce and the Solicitor General agreed on the outcome

86.7% (26/30)

When the Chamber of Commerce and the Solicitor General were in opposition

52.2% (23.5/45)

When the Chamber of Commerce and the Solicitor General were in opposition and the government was a party

78.1% (12.5/16)

When the Chamber of Commerce and the Solicitor General were in opposition and the government was amicus curiae

41.9% (13/31)

difference in the Solicitor General’s success rate depending on whether the government participated as a party or as amicus curiae: the Court sided with the United States over the Chamber in only 22 percent of the cases in which government was a party,[4] but it did so in 58 percent of the cases in which Solicitor General participated as amicus curiae.

Last, and perhaps most interesting, the Roberts Court has been less receptive to the arguments presented by the Solicitor General in business-related cases during the Obama administration than it was during the Bush administration. As Table 1.5 demonstrates, during both administrations the Roberts Court has nearly always reached the result favorable to business when it was endorsed by both the Chamber and the United States. But the rate at which the Court has sided with the government when the Solicitor General has opposed the Chamber has declined substantially, from 63 percent to 37 percent— a change that is statistically significant at a 90 percent level of confidence.[5] More specifically, while the Solicitor General prevailed in most every case in which it opposed the Chamber as amicus curiae during the Bush administration (85 percent), the Court has sided with the Solicitor General in less than half of such cases (seven of sixteen) during the Obama administration—a shift that is statistically significant at a 99 percent level of confidence.[6] Though perhaps unsurprising, it is nonetheless an intriguing development in the Court’s decision making.

Table 1.5 Proportion ofDecisions on the Merits Favorable to Business

Interests (i.e., the Outcome Supported by the Chamber of Commerce), October Term 2005 through October Term 2011

Condition

Bush

administration

Obama

administration

When Chamber of Commerce and the Solicitor General agree (overall)

89.5% (17/19)

81.8% (9/11)

When Chamber of Commerce and the Solicitor General agree and the United States is a party

50% (1/2)

50.0% (1/2)

When Chamber of Commerce and the Solicitor General agree and the United States is amicus curiae

94.1% (16/17)

88.9% (8/9)

When Chamber of Commerce and the Solicitor General are opposed (overall)

36.8% (7/19)

63.5% (16.5/26)

When Chamber of Commerce and the Solicitor General are opposed and the United States is a party

83.3% (5/6)

75.0% (7.5/10)

When Chamber of Commerce and the Solicitor General are opposed and the United States is amicus curiae

15.4% (2/13)

56.3% (9/16)

  • [1] F or an explanation of the two proportion Z-test, see David S. Moore, The Basic Practice ofStatistics, 504-507, 521-24 (4th ed. 2007). The Z-test is applied in the following fashion. First, thestandard deviation ofthe difference (SD) is the square root of(P1x (1—P1) - N1) + (P2x (I-P2) - N2),where P1 is the first proportion, P2 is the second proportion, N1 is the number of trials (or cases) outof which P1 is a proportion, and N2 is the number of trials (or cases) out of which P2 is a proportion.The Z value for the difference equals (P1—P2) - SD. At the P=.05 level of confidence (where thereis a 95 percent chance that the difference in the proportions is not the result of random chance),Z=1.96 (when using a two-tailed test). Thus, a Z value of1.96 or higher means statistical significanceat the level of P=.05. Here, the Z value for the difference in proportions is 2.316.
  • [2] Interestingly, this difference between the Solicitor General’s success as a party and as amicuscuriae is statistically significant at the P=.01 level of confidence (Z=4.116).
  • [3] This difference between the rate in favor of the Solicitor General and that in favor of theChamber is not statistically significant (Z=0.4178).
  • [4] The Court effectively split the difference between the two sides in one case, however. SeeGeneral Dynamics v. United States, 131 S. Ct. 1300 (2011); note 40 supra.
  • [5] The Z score for this difference in proportions is 1.8357.
  • [6] The Z score for the difference is 2.6794.
 
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