The words “Equal Justice Under Law” are chiseled into the marble frieze above the main entrance to the Supreme Court building. But the Term that ended this week revealed a heavy thumb on the scales of justice for corporate interests and against workers, consumers, and average Americans.
Of the 62 cases that the Court decided after oral argument this Term, the U.S. Chamber of Commerce filed amicus briefs in 15 of them. Of those, the Chamber won 12 – a win rate of 80 percent, the highest winning percentage since the Term that began in October 2012.
In fact, since early 2006 when Justice Samuel Alito took the bench, the Court under Chief Justice John Roberts has ruled in favor of the Chamber 70 percent of the time. That’s almost double the rate of pro-Chamber rulings three decades ago. The late Rehnquist court (1994-2005) sided with the Chamber 56 percent of the time, while the stable Burger court (1981-1986) ruled for the Chamber 43 percent of the time.
Justice Alito continues to lead all of his colleagues in pro-Chamber votes, finding in the organization’s favor an eye-popping 93% of the time this Term, and 75% overall since joining the Court. This pronounced ideological tilt becomes a gaping rift when the votes of Republican appointees (including the votes of the late Justice Antonin Scalia) are compared with their Democratic counterparts. Alito and his fellow Republican appointees have voted with the Chamber an average of more than 72% of the time. By contrast, the four Democratic appointees find in favor of the Chamber an average of 50%.
The newest Justice – President Trump’s nominee to replace Justice Scalia – voted in only five of the Chamber’s cases this Term. Perhaps in an early sign that Justice Neil Gorsuch will be as good for the Chamber and the business community as they expected him to be when he was nominated, however, Justice Gorsuch voted for the Chamber’s position all five times – including the fifth vote against a class action-related claim in a case decided on the final day of the Term.
Overall, few cases stood out on the Court’s just-completed business docket, much less entered the national conversation. That doesn’t mean they weren’t important. The Chamber was able to consolidate and expand past victories while blocking efforts to chip away at previous pro-corporate decisions. Those Chamber wins include rulings that made it harder for injured consumers and workers to sue in court, relaxed restrictions on debt collectors, and limited the government’s ability to collect civil penalties for financial wrongdoing. One of the few exceptions to the Chamber’s 2016-2017 win streak, and a very welcome one, came earlier this year in the Wells Fargo/ Bank of America v. City of Miami cases. There, the Court ruled that Miami had the right to sue the big banks under the Fair Housing Act for racially discriminatory lending. Miami asserts that the banks’ predatory actions led to widespread foreclosures, which lowered the City’s tax base while raising the need for city services. Now the people of Miami will have the opportunity to prove that claim.
Taken as a whole, however, the Court’s business rulings this Term advanced the steady upward trend for corporate America’s prospects at the Roberts Court, while further eroding access to justice and legal protections for real people. Now that the Court has Justice Gorsuch – who the Chamber called a “fantastic nomination” earlier this year – the prospects for a more balanced approach to business cases look as distant as ever.