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Big Wins for Big Business in the U.S. Supreme Court

The cases this Supreme Court term show that corporations are at the center of the conversation about huge areas of constitutional law these days. If you care about the Constitution, you have to care about business cases in the Roberts Court.
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A year ago, the U.S. Supreme Court's October 2009 Term featured not only the Court's blockbuster ruling in Citizens United v. Federal Election Commission, but also a success rate for the U.S. Chamber of Commerce reaching 81% (or 13 wins in 16 cases) (PDF). This focused a national spotlight on the Court's business rulings under Chief Justice John Roberts. The Court's just-concluded October 2010 Term featured even more cases of considerable importance to business interests, and may ultimately prove just as momentous.

Yesterday, Constitutional Accountability Center -- which was involved in five of the biggest business cases this term -- released an end-of-Term Issue Brief (PDF) that identifies two major themes of the Court's business rulings this Term, and updates our empirical analysis of the Chamber's success rate before the Roberts Court.

The first theme involves corporate accountability. Today, the Senate Judiciary Committee, led by Chairman Patrick Leahy, discussed this theme in a hearing featuring the lead plaintiff in the Wal-Mart case, Betty Dukes, and legal experts who put the case in a broader context. In a series of important and closely divided cases this Term including Wal-Mart v. Dukes, AT&T v. Concepcion, and PLIVA v. Mensing, the Court has made it increasingly difficult for Americans to hold corporations accountable for serious misconduct, including widespread discrimination and fraud.

The second theme we identify involves corporate speech. In Citizens United, the Court ruled that corporations have a First Amendment right to spend unlimited amounts of money to help elect candidates of their choice. In Arizona Free Enterprise v. Bennett, the Court reaffirmed and extended the impact of the Citizens United ruling in the campaign finance arena, and in Sorrell v. IMS, the Court appears to be extending Citizen United's protection of political speech by corporations into the separate arena of commercial speech. The Sorrell opinion, in particular, is a blockbuster in the making, a ruling that could lead the Court to throw out restrictions on the marketing of harmful products like tobacco.

In terms of the Chamber's success rate at the Roberts Court, let me give a quick summary of the numbers. The Chamber participated in a record 21 cases during the October 2010 Term and won 12 of them, a 57% win rate. The Chamber prevailed in all the cases it viewed as the Term's most important cases and all but one of the cases splitting the Court along ideological lines. Overall, since January 2006 when Justice Alito joined the Court, the Chamber has prevailed in 65% of its cases before the Roberts Court, a figure that is still significantly higher than the Chamber's success rate of 56% in our study of the Rehnquist Court (PDF), and dramatically higher than its success rate in our study of the Burger Court, when the Chamber only won 43% of its cases.

CAC's empirical research into Court rulings in Chamber cases from the last 30 years also demonstrates that the number of ideologically divided rulings is increasing, and that the Chamber is prevailing overwhelmingly in this growing number of cases that split the Court along ideological lines. Those two disturbing trends continued during the October 2010 Term.

The Supreme Court's business cases can seem dry and technical, and less exciting than cases involving hot-button topics such as reproductive choice and gun rights But the cases this Term show that corporations -- and the National Chamber Litigation Center in particular -- are at the center of the conversation about huge areas of constitutional law these days.

As a result, if you care about the Constitution, you have to care about business cases in the Roberts Court.

Cross-posted at Text & History.

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