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Decisions Regarding Petitions for a Writ of Certiorari

Between September 29, 2005, and September 30, 2011, the Supreme Court acted on 127 petitions for writs of certiorari in cases in which the Chamber of Commerce participated at the certiorari stage, either as a party or as amicus curiae.[1] In each of these cases, the Chamber urged the Court to grant review. The Solicitor General participated at the certiorari stage in forty-four of these cases, twenty-nine times as a party and fifteen as amicus curiae. In all but one of the cases in which the United States filed an amicus certiorari brief, the brief had been invited by the Court.[2]

October Term 2005 through October Term 2011

Table 1.6 The Chamber of Commerce’s Participation at the Certiorari Stage,

October Term

Chamber participation (petitions decided)

Percentage granted

2005

13

23.1% (3/13)

2006

21

25.0% (5/20)a

2007

23

31.8% (7/22)b

2008

17

31.3% (5/ 16)c

2009

18

17.6% (3/17)d

2010

15

40.0% (6/15)

2011

20

36.8% (7/19)e

a One case in which the Chamber filed a petition urging the Court to grant certiorari, Ford Motor Co. v. Buell-Wilson (06-1068), was excluded from this computation because the Court granted, vacated, and remanded, rather than scheduling the case for plenary review.

b One case in which the Chamber filed a petition urging the Court to grant certiorari, American Isuzu Motors v. Ntsebeza (07-919), was excluded from this computation because the Court affirmed the judgment below on the ground that it lacked a quorum to take any action.

c One case in which the Chamber filed a petition urging the Court to grant certiorari, NiSource, Inc. v. Tawney (08-219), was excluded from this computation because the Court dismissed the case at the stipulation of the parties before it decided whether to grant certiorari.

d One case in which the Chamber filed a petition urging the Court to grant certiorari, Trainer Wortham & Co., Inc. v. Betz (07-1489), was excluded from this computation because the Court granted, vacated, and remanded, rather than scheduling the case for plenary review.

6 One case in which the Chamber filed a petition urging the Court to grant certiorari, Arctic Slope Native Ass’n, Ltd. v. Sebelius (11-83), was excluded from this computation because the Court granted, vacated, and remanded, rather than scheduling the case for plenary review.

As Table 1.6 illustrates, the Chamber’s level of participation at the certiorari stage has not increased significantly over the life of the Roberts Court. There were minor fluctuations from term to term, peaking at twenty-three in the 2007 October Term. But the Chamber’s level of participation in the 2011 October Term (twenty cases in which the Court disposed of the petition) was similar to that in the 2006 October Term (twenty-one). This differs from the pattern of the Chamber’s participation at the merits stage, which has steadily increased over the same period.

As Table 1.7 shows, the rate at which the Supreme Court granted petitions endorsed by the Chamber (29.5 percent) was startlingly higher than the background rates of roughly 4.3 percent for paid petitions and 1 percent for petitions as a whole. But obviously, correlation is not causation. It is impossible to discern, at least based on these numbers, whether the Chamber’s participation

Table 1.7 Rates at Which the Supreme Court Granted Petitions for a Writ of Certiorari, October Term 2005 through October Term 2011

Category

Percentage granted

All petitions

1.00% (570/57,084)

Paid petitions

4.27% (492/11,535)

Petitions supported by the Chamber of Commerce

29.5% (36/122)

Petitions supported by both the Chamber of Commerce

87.5% (7/8)

and the Solicitor General

Table 1.8 Rates at Which the Supreme Court Granted Petitions for a Writ of Certiorari, October Term 2005 through October Term 2011

Condition

Percentage

granted

When the Chamber of Commerce urged the Court to grant

review (overall)

29.5% (36/122)

When the Chamber of Commerce urged the Court to grant review and the Solicitor General did not participate

27.2% (22/81)

When the Chamber of Commerce and the Solicitor General both urged the Court to grant review

87.5% (7/8)

When the Chamber of Commerce and the Solicitor General both urged the Court to grant review and the United States was a party

66.7% (2/3)

When the Chamber of Commerce and the Solicitor General both urged the Court to grant review and the United States was amicus curiae

100% (6/6)

When the Chamber of Commerce urged the Court to grant review and the Solicitor General urged the Court to deny review

18.8% (6/32)

When the Chamber of Commerce urged the Court to grant review and the Solicitor General urged the Court to deny review, and the United States was a party

24.0% (6/25)

When the Chamber of Commerce urged the Court to grant review and the Solicitor General urged the Court to deny review, and the United States was amicus curiae

0.0% (0/7)

actually affected the Court’s decision making. Indeed, given the Chamber’s sophistication, it seems likely that its lawyers only urged the Court to grant petitions that they knew were good candidates for plenary review. So while the Court has granted a remarkably high proportion of the petitions endorsed by the Chamber, it is unclear what inferences we can draw from this.

Finally, as one might expect, the Court granted petitions for certiorari endorsed by the Chamber at an even higher rate when the Solicitor General also urged the Court to grant the petition. Table 1.8 reveals that, overall, the Court granted certiorari in seven of the eight cases in which both the Chamber and the Solicitor General urged the Court to grant review—and every case when the United States was participating as amicus curiae. Conversely, the Court was substantially less likely to grant certiorari, despite the endorsement of the Chamber, when the Solicitor General opposed the petition. Overall, the Court granted certiorari in only 19 percent of such cases (six of thirty-two), and it denied certiorari in every case (seven in total) in which the Solicitor General urged denial as amicus curiae.

  • [1] The universe of cases was created using the steps as those for identifying the universe of the decisions on the merits, with the sole difference being that I used Westlaw’s SCT-PETITION database(rather than the SCT-BRIEFS database).
  • [2] The one exception was American Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008) (affirming the decision below under 28 U.S.C. § 2809, which provides that, when a case is brought tothe Court on direct appeal and the Court lacks a quorum to hear it, “the Court shall enter its orderaffirming the judgment of the court from which the case was brought for review with the same effectas upon affirmance by an equally divided Court”).
 
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