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Conclusion

Again, given the relatively small number of decisions in which the Chamber of Commerce and the Solicitor General have both participated during the life of the Roberts Court, we should be reluctant to draw firm conclusions. Still, there are some interesting patterns. First, although these findings plainly do not resolve whether the Roberts Court is probusiness—a question that may be unanswerable empirically, given the complications created by case selection bias—they provide some circumstantial evidence that business interests have fared reasonably well: (l) the Roberts Court has granted nearly 30 percent of the petitions for certiorari endorsed by the Chamber of Commerce; (2) the overall success rate of the Chamber on the merits has exceeded that of the Solicitor General in cases in which both have participated; and (3) over the past three October terms, the Court has sided with the Chamber at almost twice the rate it has sided with the Solicitor General in cases in which the Chamber and the government have been opposed.

At the same time, the case should not be overstated. First, though the Chamber’s “win rate” has exceeded the Solicitor General’s over the full life of the Roberts Court in business-related cases, the margin is relatively modest (70 percent vs. 63 percent). Second, while the Court has granted nearly a third of the certiorari petitions endorsed by the Chamber, that figure jumped to 87 percent when the petition was also endorsed by the Solicitor General, and it dropped to 19 percent when it was opposed by the Solicitor General. Indeed, the Roberts Court has yet to grant a single certiorari petition endorsed by the Chamber that the United States has opposed as amicus curiae. Third, when the Chamber and the Solicitor General have disagreed on the merits and the government has participated as amicus curiae, the Roberts Court has sided with the United States 62 percent of the time (eighteen of thirty-one cases).

Finally, and perhaps most interestingly, the comparative success of business has grown—and that of the Solicitor General has waned—during the Obama administration, at least in business-related cases decided by the Court on the merits. The Chamber has prevailed in 63 percent of the twenty-six cases in which it opposed the Solicitor General since President Obama took office. By comparison, the Chamber prevailed in only 37 percent of the nineteen such cases decided by the Roberts Court during the Bush administration. Even more tellingly, during the Obama administration the Chamber has prevailed almost four times as often as it did during the Bush administration in cases in which the Chamber and the United States were opposed and the Solicitor General participated as amicus curiae (nine of sixteen vs. two of thirteen). This shift is likely attributable, at least in part, to the greater frequency with which the government has opposed the Chamber during the Obama administration. While the Bush administration’s Solicitor General and the Chamber supported the same outcome more often than not, the Obama administration has generally disagreed with the Chamber, supporting the same position in only eleven of forty-one cases (27 percent).

Of course, none of these findings is particularly surprising. The Roberts Court is, among other things, a Republican Court, with five justices appointed by relatively conservative Republican presidents. And an important policy priority among elites of the modern Republican Party—the precise demographic from which a majority of the justices on the Roberts Court has been drawn[1]— has been to reduce the level of government regulation imposed on private enterprise, particularly in the form of litigation.[2] Thus, it might be expected that the Obama administration would clash more frequently with the Chamber—and that the Roberts Court would, in turn, side less frequently with the Solicitor General—in business-related cases. This study provides some tentative empirical validation of these expectations.

Ultimately, we may be incapable of ascertaining whether the Roberts Court is actually probusiness in any meaningful sense. But we do know that, as the Obama administration has less frequently embraced the interests of business, the Supreme Court has less frequently embraced the views of the Solicitor General in business-related cases—an interesting development in its own right.

  • [1] See Mark A. Graber, The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, and theDirection of Judicial Decision Making, 56 Howard L.J. 661, 693-94 (2013).
  • [2] See generally Bradley W. Joondeph, Federalism, the Rehnquist Court, and the Modern RepublicanParty, 87 Ore. L. Rev. 117, 160-67 (2008).
 
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