business, the roberts court, and the solicitor general

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Business, The Roberts Court, and the SolicitorGeneral: Why the Supreme Court's RecentBusiness Decisions May Not Reveal Very MuchSri SrinivasanPartner, O'Melveny & Meyers, Washington D.C.

Bradley W. JoondephSanta Clara University School of Law

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Recommended Citation49 Santa Clara L. Rev. 1103 (2009)

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BUSINESS, THE ROBERTS COURT, AND THESOLICITOR GENERAL: WHY THE SUPREMECOURT'S RECENT BUSINESS DECISIONS MAYNOT REVEAL VERY MUCH

Sri Srinivasan* and Bradley W. Joondeph**

INTRODUCTION

It has almost become clich6 to call the Roberts Court afriend of American business. From antitrust to punitivedamages to securities regulation to preemption, theconventional wisdom seems to hold that the current Justiceshave shaped federal law in ways favorable to commercialenterprise. Nonetheless, especially during the 2007-2008Term, the Court has also handed down a number of decisionsfavoring plaintiffs (such as employees or consumers) at theexpense of business litigants-decisions that have led someobservers to conclude that characterizations of the RobertsCourt as "pro-business" are "far too simplistic."'

One complication in drawing firm conclusions about theRoberts Court's approach to business issues is that thecurrent group of Justices has served together for only threeyears. There simply is not much of a track record from whichto draw strong inferences. A more fundamental complicationis that other explanatory variables-influences other than adecision's import for American businesses-are certainly atplay. This essay explores one such variable that may havebeen especially significant over the past three years: the

* Partner, O'Melveny & Meyers, Washington D.C.

** Professor of Law, Santa Clara University. The authors are grateful for theoutstanding assistance provided by Anton Metlitsky and Brandon Douglass, aswell as the very helpful comments from Kyle Graham.

1. Gina Passarella, Former SG Knocks Pro-Business Label for High Court,LEGAL INTELLIGENCER, July 17, 2008, at 1, available at http://www.law.com/jsp/article.jsp?id=1202423032918.

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BUSINESS, THE ROBERTS COURT, AND THE SOLICITOR GENERAL: WHY THE SUPREME COURT'S RECENT BUSINESS DECISIONS MAY NOT REVEAL VERY MUCH


INTRODUCTION

It has almost become cliche to call the Roberts Court a friend of American business. From antitrust to punitive damages to securities regulation to preemption, the conventional wisdom seems to hold that the current Justices have shaped federal law in ways favorable to commercial enterprise. Nonetheless, especially during the 2007-2008 Term, the Court has also handed down a number of decisions favoring plaintiffs (such as employees or consumers) at the expense of business litigants-decisions that have led some observers to conclude that characterizations of the Roberts Court as "pro-business" are "far too simplistic."!

One complication in drawing firm conclusions about the Roberts Court's approach to business issues is that the current group of Justices has served together for only three years. There simply is not much of a track record from which to draw strong inferences. A more fundamental complication is that other explanatory variables-influences other than a decision's import for American businesses-are certainly at play. This essay explores one such variable that may have been especially significant over the past three years: the

* Partner, O'Melveny & Meyers, Washington D.C. ** Professor of Law, Santa Clara University. The authors are grateful for the outstanding assistance provided by Anton Metlitsky and Brandon Douglass, as well as the very helpful comments from Kyle Graham.

1. Gina Passarella, Former sa Knocks Pro-Business Label for High Court, LEGAL INTELLIGENCER, July 17, 2008, at 1, available at http://www.law.com/jsp/ article.jsp?id=1202423032918.

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INTRODUCTION





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content of the arguments presented to the Court by theSolicitor General.

It is well known that the Solicitor General is aninfluential advocate at the Court. And it stands to reasonthat the views of the Solicitor General for the Bushadministration may have been received especially favorablyby the current group of Justices: seven of the Roberts Court'smembers were appointed by Republican presidents, and twowere appointed by President George W. Bush himself. As aresult, there was apt to be a fair measure of ideologicalaffinity between the views of the Roberts Court and positionstaken by the Bush administration's Solicitor General.

Perhaps unsurprisingly, given the basic commitments ofthe modern Republican Party, the Bush administrationfrequently filed briefs as amicus curiae supporting businesslitigants. But on a number of occasions, the federalgovernment weighed in against business interests and insupport of employees or consumers. And when it did, theRoberts Court nearly always ruled against the interests ofbusiness and in favor of the position advocated by the UnitedStates. How are we to understand this pattern? Does itsuggest that the Roberts Court is actually more pro-government than pro-business? Alternatively, does it reflecta meaningful moderation in the Court's sympathy forbusiness interests? Or does it signify something else still?

We suggest that the answer may be all or none of theabove-in essence, that these decisions leave muchunrevealed. Specifically, given the Bush administration'swell-known reputation as a strong ally of business, itsarguments against the interests of business likely carried agreat deal of credibility with the Court. Consequently,decisions by the Roberts Court siding against businesslitigants, but in favor of the Solicitor General, may show onlythat the arguments of business litigants in those cases wentbeyond what the law could permit. At the same time, theCourt's siding with the government in business cases may notillustrate the Solicitor General's influence per se as much as itreflects the general agreement between the Justices and theBush administration on how best to resolve the legalquestions at issue. Hence, the decisions may not tell us muchabout the Roberts Court's underlying attitudes towardsbusiness or the federal government-that is, whether, and

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content of the arguments presented to the Court by the Solicitor General.

It is well known that the Solicitor General is an influential advocate at the Court. And it stands to reason that the views of the Solicitor General for the Bush administration may have been received especially favorably by the current group of Justices: seven of the Roberts Court's members were appointed by Republican presidents, and two were appointed by President George W. Bush himself. As a result, there was apt to be a fair measure of ideological affinity between the views of the Roberts Court and positions taken by the Bush administration's Solicitor General.

Perhaps unsurprisingly, given the basic commitments of the modern Republican Party, the Bush administration frequently filed briefs as amicus curiae supporting business litigants. But on a number of occasions, the federal government weighed in against business interests and in support of employees or consumers. And when it did, the Roberts Court nearly always ruled against the interests of business and in favor of the position advocated by the United States. How are we to understand this pattern? Does it suggest that the Roberts Court is actually more progovernment than pro-business? Alternatively, does it reflect a meaningful moderation in the Court's sympathy for business interests? Or does it signify something else still?

We suggest that the answer may be all or none of the above-in essence, that these decisions leave much unrevealed. Specifically, given the Bush administration's well-known reputation as a strong ally of business, its arguments against the interests of business likely carried a great deal of credibility with the Court. Consequently, decisions by the Roberts Court siding against business litigants, but in favor of the Solicitor General, may show only that the arguments of business litigants in those cases went beyond what the law could permit. At the same time, the Court's siding with the government in business cases may not illustrate the Solicitor General's influence per se as much as it reflects the general agreement between the Justices and the Bush administration on how best to resolve the legal questions at issue. Hence, the decisions may not tell us much about the Roberts Court's underlying attitudes towards business or the federal government-that is, whether, and











20091 DECISIONS MAY NOT REVEAL VERY MUCH 1105

the extent to which, it is enduringly "pro-business" or "pro-government."

This essay presents an empirical examination of the fulluniverse of the Roberts Court's decisions affecting theinterests of business from January 2006, when Justice Alitojoined the Court, to January 2009. As a purely descriptivematter, we find that the Court tended to reach resultsfavorable to business interests, and that it tended to adoptthe positions urged by the Bush administration. Moreover,when those two positions diverged-most saliently, in caseswhere the United States and the United States Chamber ofCommerce filed opposing amicus briefs-the Roberts Courtoverwhelmingly sided with the government.

While these findings are interesting, our basic thesis isthat there is no simple way to interpret these outcomes.Rather, it likely will take a different cohort of decisions tobring the Roberts Court's general attitudes towards businessand the federal government to the surface. Most assume theObama administration will be less ideologically aligned withthe current Justices than the Bush administration, and lessapt to side with business interests on questions of federal law.If this comes to pass-and the Obama administration'sSolicitor General argues for outcomes contrary to businessinterests in a number of cases-it may then be possible toreach more definitive conclusions about the Roberts Court'sresponsiveness to American business and the federalgovernment.

I. BUSINESS, THE ROBERTS COURT, AND THE FEDERAL

GOVERNMENT

In a New York Times Magazine article written roughly ayear ago, Jeffrey Rosen profiled the United States Chamberof Commerce and its increasing success in persuading theSupreme Court through its amicus filings to render decisionscongenial to American business. The article, which begins bynoting that the "affinities between" the Supreme Court'sbuilding and the Chamber's headquarters "seem to be more

2. Jeffrey Rosen, Supreme Court Inc., N.Y. TIMES, Mar. 16, 2008, § MM(Magazine) at 38.


2009] DECISIONS MAY NOT REVEAL VERY MUCH 1105

the extent to which, it is enduringly "pro-business" or "progovernment."

This essay presents an empirical examination of the full universe of the Roberts Court's decisions affecting the interests of business from January 2006, when Justice Alito joined the Court, to January 2009. As a purely descriptive matter, we find that the Court tended to reach results favorable to business interests, and that it tended to adopt the positions urged by the Bush administration. Moreover, when those two positions diverged-most saliently, in cases where the United States and the United States Chamber of Commerce filed opposing amicus briefs-the Roberts Court overwhelmingly sided with the government.

While these fmdings are interesting, our basic thesis is that there is no simple way to interpret these outcomes. Rather, it likely will take a different cohort of decisions to bring the Roberts Court's general attitudes towards business and the federal government to the surface. Most assume the Obama administration will be less ideologically aligned with the current Justices than the Bush administration, and less apt to side with business interests on questions of federal law. If this comes to pass-and the Obama administration's Solicitor General argues for outcomes contrary to business interests in a number of cases-it may then be possible to reach more defmitive conclusions about the Roberts Court's responsiveness to American business and the federal government.

1. BUSINESS, THE ROBERTS COURT, AND THE FEDERAL GOVERNMENT

In a New York Times Magazine article written roughly a year ago,2 Jeffrey Rosen profiled the United States Chamber of Commerce and its increasing success in persuading the Supreme Court through its amicus filings to render decisions congenial to American business. The article, which begins by noting that the "affinities between" the Supreme Court's building and the Chamber's headquarters "seem to be more

2. Jeffrey Rosen, Supreme Court Inc., NY. TIMES, Mar. 16, 2008, § MM (Magazine) at 38.
















than just architectural,"3 chronicles the history of theChamber's efforts to influence the Court, and explains atlength that the Chamber seems now to exert more influencethan ever before. For example, Rosen notes, "[allthough theCourt is currently accepting less than 2 percent of the 10,000petitions it receives each year, the Chamber of Commerce'spetitions between 2004 and 2007 were granted at a rate of 26percent."4 "And ever since John Roberts was appointed ChiefJustice in 2005," Rosen observes, "the Court has seemed onlymore receptive to business concerns. "'

This perception of the Roberts Court as an institutionincreasingly aligned with business interests is widely shared.Indeed, it is conventional media wisdom that, with theadditions of Chief Justice John Roberts and Associate JusticeSamuel Alito, the newly constituted Court has been "good forbusiness."6 The Roberts Court is viewed by some as " 'evenbetter for business' than the Court led for two decades by thelate Chief Justice William H. Rehnquist."7

While the views expressed in Rosen's article and otherpress accounts have largely remained confined to the domainof commentators and editorial boards, the image of theRoberts Court as "reflexively pro-business"-as the New YorkTimes editorial board phrased it'-has occasionally caughtthe attention of elected officials as well. The best examplemay be the reaction to the Supreme Court's five-to-fourdecision in Ledbetter v. Goodyear Tire & Rubber Co.9 TheCourt sided with Goodyear in holding that Lilly Ledbetter, aformer Goodyear employee who alleged that she for years hadbeen paid less than her male counterparts doing the same job,was too late in bringing suit for sex discrimination underTitle VII of the Civil Rights Act of 1964.10 Goodyear's position

3. Id.4. Id.5. Id.6. David G. Savage, High Court Is Good for Business, L.A. TIMES, June 21,

2007, at Al; see also Alicia Mundy & Shirley S. Wang, In Drug Case, Justices toWeigh Right to Sue, WALL ST. J., Oct. 27, 2008, at B1 (labeling the RobertsCourt as "one of the most pro-business [Courts] in 50 years").

7. Savage, supra note 6 (quoting Maureen Mahoney, a leading SupremeCourt advocate).

8. Editorial, The Court and Workers, N.Y. TIMES, June 21, 2008, at A18.9. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 618 (2007).

10. 42 U.S.C. § 2000e (2006).

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than just architectural ,"3 chronicles the history of the Chamber's efforts to influence the Court, and explains at length that the Chamber seems now to exert more influence than ever before. For example, Rosen notes, "[a]lthough the Court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce's petitions between 2004 and 2007 were granted at a rate of 26 percent."4 "And ever since John Roberts was appointed Chief Justice in 2005," Rosen observes, "the Court has seemed only more receptive to business concerns."5

This perception of the Roberts Court as an institution increasingly aligned with business interests is widely shared. Indeed, it is conventional media wisdom that, with the additions of Chief Justice John Roberts and Associate Justice Samuel Alito, the newly constituted Court has been "good for business."6 The Roberts Court is viewed by some as " 'even better for business' than the Court led for two decades by the late Chief Justice William H. Rehnquist."7

While the views expressed in Rosen's article and other press accounts have largely remained confined to the domain of commentators and editorial boards, the image of the Roberts Court as "reflexively pro-business"-as the New York Times editorial board phrased itS-has occasionally caught the attention of elected officials as well. The best example may be the reaction to the Supreme Court's five-to-four decision in Ledbetter v. Goodyear Tire & Rubber Co. 9 The Court sided with Goodyear in holding that Lilly Ledbetter, a former Goodyear employee who alleged that she for years had been paid less than her male counterparts doing the same job, was too late in bringing suit for sex discrimination under Title VII of the Civil Rights Act of 1964.10 Goodyear's position

3. Id. 4. Id. 5. Id. 6. David G. Savage, High Court Is Good for Business, L.A. TIMES, June 21,

2007, at AI; see also Alicia Mundy & Shirley S. Wang, In Drug Case, Justices to Weigh Right to Sue, WALL ST. J., Oct. 27, 2008, at B1 (labeling the Roberts Court as "one of the most pro-business [Courts] in 50 years").

7. Savage, supra note 6 (quoting Maureen Mahoney, a leading Supreme Court advocate).

8. Editorial, The Court and Workers, N.Y. TIMES, June 21, 2008, at A18. 9. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 618 (2007).

10. 42 U.S.C. § 2000e (2006).









10. 42 U.S.C. § 2000e (2006).









10. 42 U.S.C. § 2000e (2006).


was supported by the Chamber of Commerce."In the wake of Ledbetter, the New York Times editorial

board, with a headline titled Injustice 5, Justice 4, decriedthat the "ruling is the latest indication that a Court that onceproudly stood up for the disadvantaged is increasinglyprotective of the powerful." 2 But the view that the Court hadmoved too far to the side of business extended beyondeditorial boards and commentators. Ledbetter's case alsodrew the attention of Congress, and led to the passage in theHouse of Representatives of the Ledbetter Fair Pay Act of2007,'" intended to overrule the Court's decision. Althoughthe bill initially stalled in the Senate in the face ofRepublican (and Bush administration) opposition, a newCongress passed the bill in January 2009 and PresidentObama signed it into law.'4

The Ledbetter case illustrates a potential-and little-noted-wrinkle in the widely accepted view that the RobertsCourt is "reflexively pro-business," for there was one party inLedbetter and other business cases with which the RobertsCourt has sided even more than the Chamber ofCommerce: the United States. As has often happened incases in which the business community has an interest in theoutcome of a case, the Solicitor General filed an amicus briefin Ledbetter supporting the business side, 5 the position thatprevailed.

The importance of the Solicitor General-and thepositions that he or she takes-in Supreme Court litigation iswell-established. One Court observer has noted that

[tihe Court plainly provides the Solicitor General's legalarguments with heightened respect because of the natureof his client-the United States-and the deference thatthe judicial branch naturally owes in many legal settingsto the views of counsel representing the interests of the

11. See Brief of the Chamber of Commerce of the United States of Americaand the Nat'l Fed'n of Indep. Bus. Legal Found. as Amici Curiae in Support ofRespondent, Ledbetter, 550 U.S. 618 (No. 05-1074).

12. Editorial, Injustice 5, Justice 4, N.Y. TIMES, May 31, 2007, at A18.13. Ledbetter Fair Pay Act of 2007, H.R. 2831, 110th Cong. (1997).14. See Sheryl Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y.

TIMES, Jan. 30, 2009, at Al.15. See Brief for the United States as Amicus Curiae Supporting

Respondent, Ledbetter, 550 U.S. 618 (No. 05-1074).



was supported by the Chamber of Commerce. 11

In the wake of Ledbetter, the New York Times editorial board, with a headline titled Injustice 5, Justice 4, decried that the "ruling is the latest indication that a Court that once proudly stood up for the disadvantaged is increasingly protective of the powerful."12 But the view that the Court had moved too far to the side of business extended beyond editorial boards and commentators. Ledbetter's case also drew the attention of Congress, and led to the passage in the House of Representatives of the Ledbetter Fair Pay Act of 2007,13 intended to overrule the Court's decision. Although the bill initially stalled in the Senate in the face of Republican (and Bush administration) opposition, a new Congress passed the bill in January 2009 and President Obama signed it into lawY

The Ledbetter case illustrates a potential-and littlenoted-wrinkle in the widely accepted view that the Roberts Court is "reflexively pro-business," for there was one party in Ledbetter and other business cases with which the Roberts Court has sided even more than the Chamber of Commerce: the United States. As has often happened in cases in which the business community has an interest in the outcome of a case, the Solicitor General filed an amicus brief in Ledbetter supporting the business side,15 the position that prevailed.

The importance of the Solicitor General-and the positions that he or she takes-in Supreme Court litigation is well-established. One Court observer has noted that

[t]he Court plainly provides the Solicitor General's legal arguments with heightened respect because of the nature of his client-the United States-and the deference that the judicial branch naturally owes in many legal settings to the views of counsel representing the interests of the

11. See Brief of the Chamber of Commerce of the United States of America and the Nat'l Fed'n of Indep. Bus. Legal Found. as Amici Curiae in Support of Respondent, Ledbetter, 550 U.S. 618 (No. 05-1074).

12. Editorial, Injustice 5, Justice 4, N.Y. TIMES, May 31, 2007, at A18. 13. Ledbetter Fair Pay Act of 2007, H.R. 2831, 110th Congo (1997). 14. See Sheryl Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y.

TIMES, Jan. 30, 2009, at AI. 15. See Brief for the United States as Amicus Curiae Supporting























two other branches of government. 6

It is no wonder that the Solicitor General is often referred toas the "Tenth Justice." 7

Although the media's general characterization of theRoberts Court as "pro-business," and its focus on theinfluence of the Chamber of Commerce, has generally left therole of the Solicitor General unaddressed, the position takenby the United States gained wide attention in at least onerecent business case, Stoneridge Investment Partners, L.L.C.v. Scientific-Atlanta, Inc.'8 The issue in Stoneridge arosefrom the Court's 1994 decision in Central Bank of Denver,N.A. v. First Interstate Bank of Denver, N.A.' 9 The Court inCentral Bank held that private actions under section 10(b) ofthe Exchange Act of 1934, the "catchall provision"" thatgenerally prohibits securities fraud,2' fail to encompass aidingor abetting securities fraud. The courts of appealssubsequently split over whether so-called "scheme liability"-that is, the ability of an injured investor "to recover from aparty that neither makes a public misstatement nor violatesa duty to disclose but does participate in a scheme toviolate" 22-nevertheless falls within the scope of section10(b).2 3

In the lower courts, the Securities and ExchangeCommission (the "SEC") had taken the position that "schemeliability" claims were actionable by private parties as

16. Richard J. Lazarus, Advocacy Matters before and within the SupremeCourt: Transforming the Court by Transforming the Bar, 96 GEO. L.J. 1487,1493 (2008).

17. See, e.g., LINCOLN CAPLAN, THE TENTH JUSTICE: THE SOLICITORGENERAL AND THE RULE OF LAW (1987).

18. Stoneridge Inv. Partners, L.L.C. v. Scientific-Atlanta, Inc., 128 S. Ct.761 (2008).

19. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511U.S. 164 (1994).

20. Chiarella v. United States, 445 U.S. 222, 235 (1980).21. See Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (2006).22. Stoneridge, 128 S. Ct. at 767.23. Compare Simpson v. AOL Time Warner, Inc., 452 F.3d 1040 (9th Cir.

2006) (holding that 'scheme liability" was actionable under section 10(b)),vacated, Avis Budget Group, Inc. v. Cal. State Teachers' Ret. Sys., 128 S. Ct.1119 (2008), with Regents of Univ. of Cal. v. Credit Suisse First Boston (USA),Inc., 482 F.3d 372 (5th Cir. 2007) (rejecting "scheme liability" theory ofsecurities fraud), and In re Charter Commc'ns, Inc., Sec. Litig., 443 F.3d 987(2006).

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It is no wonder that the Solicitor General is often referred to as the ''Tenth Justice."17

Although the media's general characterization of the Roberts Court as "pro-business," and its focus on the influence of the Chamber of Commerce, has generally left the role of the Solicitor General unaddressed, the position taken by the United States gained wide attention in at least one recent business case, Stoneridge Investment Partners, L.L.C. v. Scientific-Atlanta, Inc. 1B The issue in Stoneridge arose from the Court's 1994 decision in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A.19 The Court in Central Bank held that private actions under section 10(b) of the Exchange Act of 1934, the "catchall provision"20 that generally prohibits securities fraud,21 fail to encompass aiding or abetting securities fraud. The courts of appeals subsequently split over whether so-called "scheme liability"that is, the ability of an injured investor "to recover from a party that neither makes a public misstatement nor violates a duty to disclose but does participate in a scheme to violate"22-nevertheless falls within the scope of section 10(b).23

In the lower courts, the Securities and Exchange Commission (the "SEC") had taken the position that "scheme liability" claims were actionable by private parties as

16. Richard J. Lazarus, Advocacy Matters before and within the Supreme Court: Transforming the Court by Transforming the Bar, 96 GEO. L.J. 1487, 1493 (2008).

17. See, e.g., LINCOLN CAPLAN, THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW (1987).

18. Stoneridge Inv. Partners, L.L.C. v. Scientific-Atlanta, Inc., 128 S. Ct. 761 (2008).

19. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994).

20. Chiarella v. United States, 445 U.S. 222, 235 (1980). 21. See Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (2006). 22. Stone ridge, 128 S. Ct. at 767. 23. Compare Simpson v. AOL Time Warner, Inc., 452 F.3d 1040 (9th Cir.

2006) (holding that "scheme liability" was actionable under section 10(b», vacated, Avis Budget Group, Inc. v. Cal. State Teachers' Ret. Sys., 128 S. Ct. 1119 (2008), with Regents of Univ. of Cal. v. Credit Suisse First Boston (USA), Inc., 482 F.3d 372 (5th Cir. 2007) (rejecting "scheme liability" theory of securities fraud), and In re Charter Commc'ns, Inc., Sec. Litig., 443 F.3d 987 (2006).
























securities fraud.24 But while the SEC, as an "independent"agency, has independent litigation authority from theDepartment of Justice in lower courts, it lacks suchindependent authority in the Supreme Court.25 Thus, afterthe Supreme Court granted certiorari to resolve the conflictamong the circuits in Stoneridge-billed by LindaGreenhouse of the New York Times as "one of the most closelywatched business cases in years"26-a change in thegovernment's litigation position was a distinct possibility.

The importance of which side the Solicitor General wouldsupport escaped neither the media nor elected officials.Indeed, after the deadline for amicus briefs to be filed insupport of the plaintiff-petitioners had passed-and it becameclear that the government would side with business interestsor with neither side-Senator Dodd, the DemocraticChairman of the Finance Committee, sent a letter to theJustice Department urging it to refrain from filing a brief insupport of the business side (i.e., the respondents), a positionfor which the Wall Street Journal editorial board stronglycriticized him." And when the United States did file a briefsupporting the respondents, the press was not alone in takingnote,28 as both sitting senators and congressmen, as well asformer SEC commissioners, moved to present late-filedamicus briefs supporting the petitioner.29

The belief that the Solicitor General's position inStoneridge would be highly influential may well have beencorrect. The Court sided in favor of the respondentbusinesses, the Chamber, and the government, holding that

24. See Brief of the SEC, Amicus Curiae, in Support of Positions that FavorAppellant, Simpson, 452 F.3d 1040 (No. 04-55665).

25. See Neal Devins, Unitariness and Independence: Solicitor GeneralControl over Independent Agency Litigation, 82 CAL. L. REV. 255, 263-65 (1994).

26. Linda Greenhouse, Skeptically, Court Hears Fraud Case, N.Y. TIMES,Oct. 10, 2007, at C1.

27. See Editorial, Guilt by Contact, WALL ST. J., Aug. 23, 2007, at A10.28. See, e.g., Kara Scannell, Bush Sides with Business over Lawsuits, WALL

ST. J., Aug. 16, 2007, at A4.29. See Motion for Leave to File a Brief as Amici Curiae after the Filing

Deadline and Brief Amici Curiae of the Honorable John Conyers, Jr. andBarney Frank, in Support of Petitioner, Stoneridge Inv. Partners, L.L.C. v.Scientific-Atlanta, Inc., 128 S. Ct. 761 (2008) (No. 06-43); Motion for Leave toFile Brief out of Time and Brief Amici Curiae of Former SEC Comm'rs inSupport of Petitioner, Stoneridge, 128 S. Ct. 761 (No. 06-43).



securities fraud. 24 But while the SEC, as an "independent" agency, has independent litigation authority from the Department of Justice in lower courts, it lacks such independent authority in the Supreme Court.25 Thus, after the Supreme Court granted certiorari to resolve the conflict among the circuits in Stoneridge-billed by Linda Greenhouse of the New York Times as "one of the most closely watched business cases in years"26-a change in the government's litigation position was a distinct possibility.

The importance of which side the Solicitor General would support escaped neither the media nor elected officials. Indeed, after the deadline for amicus briefs to be filed in support of the plaintiff-petitioners had passed-and it became clear that the government would side with business interests or with neither side-Senator Dodd, the Democratic Chairman of the Finance Committee, sent a letter to the Justice Department urging it to refrain from filing a brief in support of the business side (i.e., the respondents), a position for which the Wall Street Journal editorial board strongly criticized him.27 And when the United States did file a brief supporting the respondents, the press was not alone in taking note,28 as both sitting senators and congressmen, as well as former SEC commissioners, moved to present late-filed amicus briefs supporting the petitioner.29

The belief that the Solicitor General's position in Stoneridge would be highly influential may well have been correct. The Court sided in favor of the respondent businesses, the Chamber, and the government, holding that

24. See Brief of the SEC, Amicus Curiae, in Support of Positions that Favor Appellant, Simpson, 452 F.3d 1040 (No. 04-55665).

25. See Neal Devins, Unitariness and Independence: Solicitor General Control over Independent Agency Litigation, 82 CAL. L. REV. 255, 263-65 (1994).

26. Linda Greenhouse, Skeptically, Court Hears Fraud Case, N.Y. TIMES, Oct. 10,2007, at Cl.

27. See Editorial, Guilt by Contact, WALL ST. J., Aug. 23, 2007, at A10. 28. See, e.g., Kara Scannell, Bush Sides with Business over Lawsuits, WALL

ST. J., Aug. 16, 2007, at A4. 29. See Motion for Leave to File a Brief as Amici Curiae after the Filing

Deadline and Brief Amici Curiae of the Honorable John Conyers, Jr. and Barney Frank, in Support of Petitioner, Stoneridge Inv. Partners, L.L.C. v. Scientific-Atlanta, Inc., 128 S. Ct. 761 (2008) (No. 06-43); Motion for Leave to File Brief out of Time and Brief Amici Curiae of Former SEC Comm'rs in Support of Petitioner, Stoneridge, 128 S. Ct. 761 (No. 06-43).






















"scheme liability" claims fall outside the scope of section10(b).10 Indeed, while both the respondents and the Chamberargued that "scheme liability" fail to satisfy numerouselements of a private cause of action under section 10(b),3 1 theSolicitor General's argument rested on only one-a failure toshow the element of "reliance."32 And that is precisely whatthe Court held.3

So do the Roberts Court's decisions in business casesindicate that the Court in fact is pro-business, as is typicallyassumed, or is the Court instead pro-government? To besure, it often may not make any difference. In cases duringthe Roberts Court in which both the United States and theChamber of Commerce have filed amicus briefs supportingone party over the other, the Solicitor General and theChamber have advocated for the same disposition on amajority of occasions . 4 That may be unsurprising given that,throughout the tenure of Chief Justice Roberts and JusticeAlito, the Solicitor General's client has been anadministration considered sympathetic to business interests.But the Solicitor General and the Chamber have not alwaysbeen aligned. And when the Solicitor General and theChamber have disagreed about the proper disposition of acase as amici curiae, the Court has overwhelmingly sidedwith the Solicitor General, a point to which we now turn.

II. OUR STUDY

A. Methodology

To explore the comparative strengths of businessinterests and the Solicitor General in affecting the Court'sdecisions, we devised a simple empirical study of the Roberts

30. Stoneridge, 128 S. Ct. at 766.31. See generally Brief for Respondents, Stoneridge, 128 S. Ct. 761 (No. 06-

43); Brief of the Chamber of Commerce of the United States of America asAmicus Curiae in Support of Respondents, Stoneridge, 128 S. Ct. 761 (No. 06-43).

32. See Brief for the United States as Amicus Curiae Supporting Affirmanceat 17-26, Stoneridge, 128 S. Ct. 761 (No. 06-43).

33. Stoneridge, 128 S. Ct. at 770 ("[We conclude respondents' deceptiveacts, which were not disclosed to the investing public, are too remote to satisfythe requirement of reliance.").

34. See infra Part II.B.

[Vol:491110



"scheme liability" claims fall outside the scope of section 10(b).30 Indeed, while both the respondents and the Chamber argued that "scheme liability" fail to satisfY numerous elements of a private cause of action under section 10(b),31 the Solicitor General's argument rested on only one-a failure to show the element of "reliance."32 And that is precisely what the Court held.33

So do the Roberts Court's decisions in business cases indicate that the Court in fact is pro-business, as is typically assumed, or is the Court instead pro-government? To be sure, it often may not make any difference. In cases during the Roberts Court in which both the United States and the Chamber of Commerce have filed amicus briefs supporting one party over the other, the Solicitor General and the Chamber have advocated for the same disposition on a majority of occasions.34 That may be unsurprising given that, throughout the tenure of Chief Justice Roberts and Justice Alito, the Solicitor General's client has been an administration considered sympathetic to business interests. But the Solicitor General and the Chamber have not always been aligned. And when the Solicitor General and the Chamber have disagreed about the proper disposition of a case as amici curiae, the Court has overwhelmingly sided with the Solicitor General, a point to which we now turn.

II. OUR STUDY

A. Methodology

To explore the comparative strengths of business interests and the Solicitor General in affecting the Court's decisions, we devised a simple empirical study of the Roberts

30. Stoneridge, 128 S. Ct. at 766. 31. See generally Brief for Respondents, Stoneridge, 128 S. Ct. 761 (No. 06-

43); Brief of the Chamber of Commerce of the United States of America as Amicus Curiae in Support of Respondents, Stoneridge, 128 S. Ct. 761 (No. 06-43).

32. See Brief for the United States as Amicus Curiae Supporting Affirmance at 17-26, Stoneridge, 128 S. Ct. 761 (No. 06-43).

33. Stoneridge, 128 S. Ct. at 770 ("[W]e conclude respondents' deceptive acts, which were not disclosed to the investing public, are too remote to satisfy the requirement of reliance. ").





II. OUR STUDY

A. Methodology










II. OUR STUDY

A. Methodology








Court's business-related decisions. We constructed a uniquedata set of every business-related decision handed down bythe Supreme Court between January 31, 2006, when SamuelAlito was sworn in as Associate Justice, and February 1,2009.31 For each decision, we coded the Court's judgment andeach individual Justice's vote as either supporting oropposing the result more favorable to business. 6 We alsocoded each case for whether the United States hadparticipated, either as a party or as amicus curiae, andwhether the United States had supported the result favorableor unfavorable to business. Finally, we coded each case forwhether the United States Chamber of Commerce hadparticipated, 37 a reasonable indication of the decision'simportance to the business community, and the salience ofthe business aspect of the case to the Justices.

As is inevitably the case when creating a data set of thissort, a party's position in a particular case-or the Court'sdecision-may defy ready categorization. As one example, inCredit Suisse Securities (USA) L.L.C. v. Billing," thepetitioner, supported by the Chamber of Commerce, arguedthat coordinated activity by members of an underwritingsyndicate pursuant to the securities laws was immune fromscrutiny under the antitrust laws. The Solicitor General,while supporting the petitioner in many respects, filed a briefsupporting neither party because the government would have

35. The complete data set (as a Microsoft Excel file) and accompanyingcodebook are available for download at the following address: http://claranet.scu.edu/eres/coursepage.aspx?cid=2525&page=docs.

36. We constructed the data set in the following manner:First, we examined the Supreme Court's decisions in the United States

Reports in chronological order, beginning in January 2006, to determine whichcases addressed issues of significance to the business community. We excludedthose decisions in which significant business interests were represented on bothsides of a case, as such cases would be unhelpful in exploring a "pro-business" or"anti-business" disposition.

Second, we coded the decisions for various conditions. The most significantwere (1) whether the outcome was favorable to business interests; (2) whetherthe votes of each individual Justice were favorable to business interests; (3)whether the United States participated, as a party or as amicus; (4) whether theposition advocated by the United States was favorable to business interests; and(5) whether the Chamber of Commerce participated in the case.

37. In most cases where the Chamber participated, it did so as amicuscuriae. In one case included in the data set, Chamber of Commerce v. Brown,128 S. Ct. 2408 (2008), the Chamber was actually a party.

38. Credit Suisse Sec. (USA) L.L.C. v. Billing, 127 S. Ct. 2383 (2007).



Court's business-related decisions. We constructed a unique data set of every business-related decision handed down by the Supreme Court between January 31,2006, when Samuel Alito was sworn in as Associate Justice, and February 1, 2009.35 For each decision, we coded the Court's judgment and each individual Justice's vote as either supporting or opposing the result more favorable to business.36 We also coded each case for whether the United States had participated, either as a party or as amicus curiae, and whether the United States had supported the result favorable or unfavorable to business. Finally, we coded each case for whether the United States Chamber of Commerce had participated,3? a reasonable indication of the decision's importance to the business community, and the salience of the business aspect of the case to the Justices.

As is inevitably the case when creating a data set of this sort, a party's position in a particular case-or the Court's decision-may defY ready categorization. As one example, in Credit Suisse Securities (USA) L.L.C. v. Billing,38 the petitioner, supported by the Chamber of Commerce, argued that coordinated activity by members of an underwriting syndicate pursuant to the securities laws was immune from scrutiny under the antitrust laws. The Solicitor General, while supporting the petitioner in many respects, filed a brief supporting neither party because the government would have

35. The complete data set (as a Microsoft Excel file) and accompanying code book are available for download at the following address: http://claranet.scu .eduleres/coursepage.aspx?cid=2525&page=docs.

36. We constructed the data set in the following manner: First, we examined the Supreme Court's decisions in the United States

Reports in chronological order, beginning in January 2006, to determine which cases addressed issues of significance to the business community. We excluded those decisions in which significant business interests were represented on both sides of a case, as such cases would be unhelpful in exploring a "pro-business" or "anti-business" disposition.

Second, we coded the decisions for various conditions. The most significant were (1) whether the outcome was favorable to business interests; (2) whether the votes of each individual Justice were favorable to business interests; (3) whether the United States participated, as a party or as amicus; (4) whether the position advocated by the United States was favorable to business interests; and (5) whether the Chamber of Commerce participated in the case.

37. In most cases where the Chamber participated, it did so as amicus curiae. In one case included in the data set, Chamber of Commerce v. Brown, 128 S. Ct. 2408 (2008), the Chamber was actually a party.





















allowed a remand to permit the plaintiff-respondents toamend their complaint.39 The Court sided with the petitioner(and the Chamber), and did not afford any opportunity for anamendment of the complaint.40 While the Solicitor Generaland the Chamber of Commerce disagreed on the questionwhether the plaintiff-respondents should have been given achance to amend their complaint, we treat the case as one inwhich the Solicitor General and the Chamber were inagreement because the government's position ultimately wasmuch closer to that of petitioner and the Chamber than thatof the plaintiff-respondents. (As one indication, thegovernment divided argument time with the petitioner ratherthan the respondent.) While certain other cases similarlydefied immediate categorization, such cases were few innumber, and in most instances, the proper coding wasstraightforward.

B. Results

During the three years between January 30, 2006, andFebruary 1, 2009, the Supreme Court handed down sixty-sixdecisions on the merits addressing legal issues directlyrelevant to American businesses where one of the possibleoutcomes was identifiably favorable to business.4 Overall,the Roberts Court reached outcomes favorable to businessinterests in forty-three (or 65.2%) of these cases. The UnitedStates Chamber of Commerce filed a brief as amicus curiae inthirty-nine of these sixty-six cases, and it was the litigatingparty in one additional case. In these forty cases, the Courtreached the result advocated by the Chamber in twenty-six(or 65.0%) of its decisions, roughly the same rate at which itfound in favor of business interests overall.

39. See Brief of the United States as Amicus Curiae in Support of Vacaturat 28, Billing, 127 S. Ct. 2383 (No. 05-1157).

40. Billing, 127 S. Ct. at 2397.41. Over this time frame, the Court also decided a number of cases in which

the question presented involved opposing business interests, such that certainbusiness groups were involved on both sides. (A good example is MicrosoftCorp. v. AT&T Corp., 550 U.S. 437 (2007).) We excluded these cases from ourstudy because, though they obviously are business related, they cannot offer anyinsight into whether the Roberts Court has been favorable to 'businessinterests" writ large.

1112 [Vol:49



allowed a remand to permit the plaintiff-respondents to amend their complaint. 39 The Court sided with the petitioner (and the Chamber), and did not afford any opportunity for an amendment of the complaint.40 While the Solicitor General and the Chamber of Commerce disagreed on the question whether the plaintiff-respondents should have been given a chance to amend their complaint, we treat the case as one in which the Solicitor General and the Chamber were in agreement because the government's position ultimately was much closer to that of petitioner and the Chamber than that of the plaintiff-respondents. (As one indication, the government divided argument time with the petitioner rather than the respondent.) While certain other cases similarly defied immediate categorization, such cases were few in number, and in most instances, the proper coding was straightforward.

B. Results

During the three years between January 30, 2006, and February 1, 2009, the Supreme Court handed down sixty-six decisions on the merits addressing legal issues directly relevant to American businesses where one of the possible outcomes was identifiably favorable to business.41 Overall, the Roberts Court reached outcomes favorable to business interests in forty-three (or 65.2%) of these cases. The United States Chamber of Commerce filed a brief as amicus curiae in thirty-nine of these sixty-six cases, and it was the litigating party in one additional case. In these forty cases, the Court reached the result advocated by the Chamber in twenty-six (or 65.0%) of its decisions, roughly the same rate at which it found in favor of business interests overall.

39. See Brief of the United States as Amicus Curiae in Support of Vacatur at 28, Billing, 127 S. Ct. 2383 (No. 05-1157).

40. Billing, 127 S. Ct. at 2397. 41. Over this time frame, the Court also decided a number of cases in which

the question presented involved opposing business interests, such that certain business groups were involved on both sides. (A good example is Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (2007).) We excluded these cases from our study because, though they obviously are business related, they cannot offer any insight into whether the Roberts Court has been favorable to "business interests" writ large.



B. Results







B. Results






The Office of the Solicitor General, acting on behalf of theBush administration, filed a brief as amicus curiae in thirty-seven business-related cases (as defined above) over thissame time frame, supporting the result favorable to businessin twenty (or 54.1%) of these cases. There were a total oftwenty-seven cases in which the United States and theUnited States Chamber of Commerce both participated asamicus curiae, and they advocated the same position inthirteen (48.1%) of these cases. In addition, there were fourcases in which the government was a party and the Chamberof Commerce weighed in against the government,42 and onecase in which the government was a party and the Chambersided with the government.43

Table 1. Win rates for business interests in business-relateddecisions handed down by the Supreme Court under variousconditions, January 30, 2006, to February 1, 2009.

Proportion ofNumber of Decisions Favoring

Condition Decisions Business Interests (%)

All business-related 66 65.2cases

Chamber of Commerce 40 65.0participated

Chamber of Commerce 8 100.0participated butUnited States did not

Chamber of Commerce 14 92.9and United Statesagreed

Chamber of Commerce 18 27.8and United Statesdisagreed

Perhaps most interesting for our purposes is whathappened in the fourteen cases in which the Bush

42. These cases are United States v. Atl. Research Corp., 127 S. Ct. 2331(2007), Rockwell Int'l Corp. v. United States, 549 U.S. 457 (2007), FEC v. Wis.Right to Life, 127 S. Ct. 2652 (2007), and Rapanos v. United States, 547 U.S.715 (2006).

43. Massachusetts v. EPA, 549 U.S. 497 (2007).



The Office of the Solicitor General, acting on behalf of the Bush administration, filed a brief as amicus curiae in thirtyseven business-related cases (as defined above) over this same time frame, supporting the result favorable to business in twenty (or 54.1%) of these cases. There were a total of twenty-seven cases in which the United States and the United States Chamber of Commerce both participated as amicus curiae, and they advocated the same position in thirteen (48.1%) of these cases. In addition, there were four cases in which the government was a party and the Chamber of Commerce weighed in against the government,42 and one case in which the government was a party and the Chamber sided with the government.43

Table 1. Win rates for business interests in business-related decisions handed down by the Supreme Court under various conditions, January 30, 2006, to February 1,2009.

Condition

All business-related cases

Chamber of Commerce participated

Chamber of Commerce participated but United States did not

Chamber of Commerce and United States agreed

Chamber of Commerce and United States disagreed

Number of Decisions

66

40

8

14

18

Proportion of Decisions Favoring

Business Interests (%)

65.2

65.0

100.0

92.9

27.8

Perhaps most interesting for our purposes is what happened in the fourteen cases in which the Bush

42. These cases are United States v. Atl. Research Corp., 127 S. Ct. 2331 (2007), Rockwell Int'l Corp. v. United States, 549 U.S. 457 (2007), FEe v. Wis. Right to Life, 127 S. Ct. 2652 (2007), and Rapanos v. United States, 547 U.S. 715 (2006).





Condition






Number of Decisions

66

40

8

14

18



65.2

65.0

100.0

92.9

27.8







Condition






Number of Decisions

66

40

8

14

18



65.2

65.0

100.0

92.9

27.8





administration and the Chamber of Commerce advocatedopposing positions as amici curiae. Here, the Court sidedwith the government, and against the Chamber, in thirteen ofthe fourteen cases--every case other than Allison Engine Co.v. United States ex rel Sanders." Thus, although the Courtreached the result favored by the Chamber in roughly two-thirds of its business cases overall, it did so only once in thefourteen cases where its view was opposed by the Bushadministration in an amicus brief.

Table 2. Win rates for the United States government in business-related decisions handed down by the Supreme Court under variousconditions, January 30, 2006, to February 1, 2009.

Proportion of DecisionsNumber of Favoring Government's

Condition Decisions Position (%)

United States 47 78.7participated

United States 10 30.0participated as a party

United States 37 91.9participated as amicuscuriae

United States and 14 92.9Chamber of Commercedisagreed as amicuscuriae

In contrast, the Court reached the result favorable tobusiness interests in all thirteen cases in which the SolicitorGeneral and the Chamber argued for the same outcome asamici, in four of the five cases in which the Chamberparticipated and the government was a party, and in all eightcases in which the Chamber participated but the Bushadministration did not. In other words, the Chamberprevailed in twenty-five of the twenty-six business cases inwhich the Solicitor General did not file an amicus briefsupporting the other side. Interestingly, although the Courtoverwhelmingly adopted the position advocated by the

44. Allison Engine Co. v. U.S. ex rel Sanders, 128 S. Ct. 2123 (2008).

1114 [Vo1:49



administration and the Chamber of Commerce advocated opposing positions as amici curiae. Here, the Court sided with the government, and against the Chamber, in thirteen of the fourteen cases-every case other than Allison Engine Co. v. United States ex rel Sanders.44 Thus, although the Court reached the result favored by the Chamber in roughly twothirds of its business cases overall, it did so only once in the fourteen cases where its view was opposed by the Bush administration in an amicus brief.

Table 2. Win rates for the United States government in businessrelated decisions handed down by the Supreme Court under various conditions, January 30,2006, to February 1, 2009.

Condition

United States participated

United States participated as a party

United States participated as amicus curiae

United States and Chamber of Commerce disagreed as amicus curiae

Proportion of Decisions Number of Favoring Government's Decisions Position (%)

47 78.7

10 30.0

37 91.9

14 92.9

In contrast, the Court reached the result favorable to business interests in all thirteen cases in which the Solicitor General and the Chamber argued for the same outcome as amici, in four of the five cases in which the Chamber participated and the government was a party, and in all eight cases in which the Chamber participated but the Bush administration did not. In other words, the Chamber prevailed in twenty-five of the twenty-six business cases in which the Solicitor General did not file an amicus brief supporting the other side. Interestingly, although the Court overwhelmingly adopted the position advocated by the

44. Allison Engine Co. v. U.S. ex rei Sanders, 128 S. Ct. 2123 (2008).




Condition






47 78.7

10 30.0

37 91.9

14 92.9






Condition






47 78.7

10 30.0

37 91.9

14 92.9




Solicitor General as amicus when the government disagreedwith the Chamber, the Court sided with the Chamber in allfour cases in which the government and the Chamberdisagreed and the government was a party.

Table 3. Proportion of votes for outcomes favoring businessinterests by Chief Justice Roberts and Justice Alito in business-related decisions handed down by the Supreme Court under variousconditions, January 30, 2006, to February 1, 2009.

Condition Roberts (%) Alito (%)

All business-related decisions 66.7 67.2(N=64) (N=58)

Chamber of Commerce 67.5 64.7participated (N=40) (N=34)

United States did not 95.5 100.0participate or agreed with (N=22) (N=17)Chamber

Chamber of Commerce and 33.3 29.4United States disagreed (N=18) (N=17)

Chamber of Commerce and 14.3 7.7United States disagreed as (N=14) (N=13)amicus curiae

As one might have expected, the voting records of the twonew Justices-Chief Justice Roberts and Justice Alito-werealmost a perfect reflection of the results produced by theCourt as a whole. As table 3 illustrates, both tended to votefor outcomes favorable to business interests, especially sowhen the Chamber of Commerce filed a brief in the case andthe United States either supported the Chamber's position ordid not participate. (Indeed, Justice Alito has yet to voteagainst the Chamber under these conditions.) But Robertsand Alito-like the Court as a whole-voted quite differentlyin cases in which the Solicitor General opposed businesslitigants, especially when he did so as an amicus.

III. DISCUSSION

Before discussing the possible implications of theseresults, a few cautionary notes are in order. First, in manysenses it is overly simplistic to evaluate the Court's decisionsalong the dimension of "pro-business" or "anti-business."



Solicitor General as amicus when the government disagreed with the Chamber, the Court sided with the Chamber in all four cases in which the government and the Chamber disagreed and the government was a party.

Table 3. Proportion of votes for outcomes favoring business interests by Chief Justice Roberts and Justice Alito in businessrelated decisions handed down by the Supreme Court under various conditions, January 30,2006, to February 1,2009.


All business-related decisions 66.7 67.2 (N=64) (N=58)

Chamber of Commerce 67.5 64.7 participated (N=40) (N=34)

United States did not 95.5 100.0 participate or agreed with (N=22) (N=17) Chamber

Chamber of Commerce and 33.3 29.4 United States disagreed (N=18) (N=17)

Chamber of Commerce and 14.3 7.7 United States disagreed as (N=14) (N=13) amicus curiae

As one might have expected, the voting records of the two new Justices-Chief Justice Roberts and Justice Alito-were almost a perfect reflection of the results produced by the Court as a whole. As table 3 illustrates, both tended to vote for outcomes favorable to business interests, especially so when the Chamber of Commerce filed a brief in the case and the United States either supported the Chamber's position or did not participate. (Indeed, Justice Alito has yet to vote against the Chamber under these conditions.) But Roberts and Alito-like the Court as a whole-voted quite differently in cases in which the Solicitor General opposed business litigants, especially when he did so as an amicus.

III. DISCUSSION

Before discussing the possible implications of these results, a few cautionary notes are in order. First, in many senses it is overly simplistic to evaluate the Court's decisions along the dimension of "pro-business" or "anti-business."











III. DISCUSSION












III. DISCUSSION



While these tags might be helpful as very general descriptors,they do not capture the various and nuanced ways in whichthe Justices actually understand and decide the cases beforethem. Though the consequences of a given decision forcommercial enterprise may well affect the Justices' choices,either consciously or unconsciously, their decision making iscertainly influenced by a number of other perspectivesbearing on the case, such as their views about the properscope of national power in a preemption case or the problemof racial or gender discrimination in an employment case.

Indeed, it seems reasonable to suppose that these otherconsiderations are often more immediately salient to theJustices than a given decision's impact on business. Thismight help explain a commonality among many of the casesthat the Roberts Court decided against the Chamber. Nine ofthe twelve cases in which the Court sided with thegovernment and against the Chamber where bothparticipated as amicus curiae involved employmentdiscrimination, labor, or ERISA issues. Here, the Court'sdecisions may well have been largely determined by factorsunrelated to the cases' implications for American businesses,such as the Justices' views about racial or genderdiscrimination, about the employment relationship moregenerally, or about the specific statutory provisions inquestion. In short, "pro-business" or "anti-business" mighthave limited currency as meaningful labels in explaining theCourt's work.

Second, a simple empirical study like ours merely countsthe number of outcomes going in one direction or the other. Ittherefore treats each decision as equally significant, withoutany weighting to account for their relative importance.Insofar as the Court might act differently in business casesdepending on a legal issue's greater or lesser significance tothe business community-no doubt, a plausible hypothesis-our analysis would fail to capture that phenomenon.

Third, our study merely measures the "win rates" ofparticular actors-business litigants, the Chamber ofCommerce, and the United States-in cases decided by theSupreme Court on the merits. Though helpful as a roughgauge, such a measure can nonetheless be misleading as anindication of the Justices' underlying attitudes because itnecessarily depends on the mix of cases the Court decides.

1116 [Vo1:49



While these tags might be helpful as very general descriptors, they do not capture the various and nuanced ways in which the Justices actually understand and decide the cases before them. Though the consequences of a given decision for commercial enterprise may well affect the Justices' choices, either consciously or unconsciously, their decision making is certainly influenced by a number of other perspectives bearing on the case, such as their views about the proper scope of national power in a preemption case or the problem of racial or gender discrimination in an employment case.

Indeed, it seems reasonable to suppose that these other considerations are often more immediately salient to the Justices than a given decision's impact on business. This might help explain a commonality among many of the cases that the Roberts Court decided against the Chamber. Nine of the twelve cases in which the Court sided with the government and against the Chamber where both participated as amicus curiae involved employment discrimination, labor, or ERISA issues. Here, the Court's decisions may well have been largely determined by factors unrelated to the cases' implications for American businesses, such as the Justices' views about racial or gender discrimination, about the employment relationship more generally, or about the specific statutory provisions in question. In short, "pro-business" or "anti-business" might have limited currency as meaningful labels in explaining the Court's work.

Second, a simple empirical study like ours merely counts the number of outcomes going in one direction or the other. It therefore treats each decision as equally significant, without any weighting to account for their relative importance. Insofar as the Court might act differently in business cases depending on a legal issue's greater or lesser significance to the business community-no doubt, a plausible hypothesisour analysis would fail to capture that phenomenon.

Third, our study merely measures the "win rates" of particular actors-business litigants, the Chamber of Commerce, and the United States-in cases decided by the Supreme Court on the merits. Though helpful as a rough gauge, such a measure can nonetheless be misleading as an indication of the Justices' underlying attitudes because it necessarily depends on the mix of cases the Court decides.












For example, due to the independent choices made bylitigants, the lower courts, and the Justices at the certioraristage, it is conceivable that the pool of business cases decidedby the Court over the past three years disproportionatelyinvolved lower court judgments that were generally favorableto plaintiffs. If so, the Court could have decided a majority ofthese cases in favor of business litigants while still holding agenerally pro-plaintiff, anti-business disposition. In otherwords, decisional outcomes are a product of not just theJustices' votes but also the questions presented. Because theframe set by those questions might be slanted in one directionor another, win rates represent a somewhat adulteratedreflection of the Justices' underlying views.

With these caveats in mind, a cursory review of ourresults still lends a modicum of support to the conventionalwisdom that the Roberts Court is friendly to the interests ofAmerican business. Over the past three years, businesslitigants have prevailed in roughly sixty-four percent of theCourt's decisions on the merits. But a closer examination ofthe data-particularly one that considers the success in thesecases of the Solicitor General-makes it much more difficultto determine whether the current Court has actually been"pro-business."

Unsurprisingly, the Bush administration tended tosupport the position favored by business interests, thoughperhaps not as often as one might have expected. Of course,it may be that, while the Bush administration only supportedthe Chamber of Commerce in roughly half of the cases inwhich they both participated as amici, it did sodisproportionately in the most significant cases. Indeed,David Franklin makes a persuasive case in his article for thissymposium that the cases that the Chamber has lost beforethe Roberts Court (i.e., the ones in which the government hasopposed the Chamber) have tended to be less important to thebusiness community.45

More interesting-and more important to ascertainingwhether the Roberts Court has been "pro-business" or "pro-government"-is what happened in those cases in which the

45. See David L. Franklin, What Kind of Business-Friendly Court?Explaining the Chamber of Commerce's Success at the Roberts Court, 49 SANTACLARA L. REV. 1019 (2009).



For example, due to the independent choices made by litigants, the lower courts, and the Justices at the certiorari stage, it is conceivable that the pool of business cases decided by the Court over the past three years disproportionately involved lower court judgments that were generally favorable to plaintiffs. If so, the Court could have decided a majority of these cases in favor of business litigants while still holding a generally pro-plaintiff, anti-business disposition. In other words, decisional outcomes are a product of not just the Justices' votes but also the questions presented. Because the frame set by those questions might be slanted in one direction or another, win rates represent a somewhat adulterated reflection of the Justices' underlying views.

With these caveats in mind, a cursory review of our results still lends a modicum of support to the conventional wisdom that the Roberts Court is friendly to the interests of American business. Over the past three years, business litigants have prevailed in roughly sixty-four percent of the Court's decisions on the merits. But a closer examination of the data-particularly one that considers the success in these cases of the Solicitor General-makes it much more difficult to determine whether the current Court has actually been "pro-business."

Unsurprisingly, the Bush administration tended to support the position favored by business interests, though perhaps not as often as one might have expected. Of course, it may be that, while the Bush administration only supported the Chamber of Commerce in roughly half of the cases in which they both participated as amICI, it did so disproportionately in the most significant cases. Indeed, David Franklin makes a persuasive case in his article for this symposium that the cases that the Chamber has lost before the Roberts Court (i.e., the ones in which the government has opposed the Chamber) have tended to be less important to the business community.45

More interesting-and more important to ascertaining whether the Roberts Court has been "pro-business" or "progovernment"-is what happened in those cases in which the

45. See David L. Franklin, What Kind of Business·Friendly Court? Explaining the Chamber of Commerce's Success at the Roberts Court, 49 SANTA CLARA L. REV. 1019 (2009).














Chamber and the Solicitor General opposed one another. TheBush administration's reputation as a proponent of businessinterests suggests that, when it took a position before theCourt against the interests of business, those argumentswould have carried a fair measure of credibility with theJustices. And our study seems to bear this out: although theChamber prevailed in twenty-one of the twenty-two cases inwhich the government either supported the Chamber or didnot participate, the Chamber lost in thirteen of the fourteencases in which the Solicitor General supported the other sideas amicus curiae. The government's success rate in thesefourteen cases is tempered somewhat by its poor showing inthe four cases in which it was a principal party and theChamber filed an opposing amicus brief. But even if weconsider all of the cases in which the government participated(whether as a party or as amicus), the Solicitor General stillfared quite well when it opposed the Chamber, prevailing inmore than seventy-two percent of such cases.46

The potential influence of the Solicitor General in theRoberts Court's resolution of business cases complicates anyconclusions we might draw about the current Court's generaldisposition towards business interests. It suggests that theCourt has cared as much-and perhaps more-about theviews of the federal government as those of the businesscommunity. Indeed, the recent spate of cases going againstbusiness interests and in favor of the government perhapscould be seen to indicate that the Roberts Court is more "pro-government" than "pro-business," and that the Court'ssympathy for commercial enterprise may actually be

46. There may be room for debate on whether the cases in which thegovernment appears as an amicus shed more light on the significance of thegovernment's position than cases in which the government is a principal party.To a certain extent, the government has greater freedom to shape its positionwhen it appears as an amicus: the government will not have been involved inthe litigation as a party and therefore will not be constrained by any positionstaken in prior proceedings in the case; and conversely, when the government isa party to the proceedings, it generally defends a favorable result unless there isno reasonable argument supporting it. The difference in the government'sfreedom to develop its position may be limited, however, because thegovernment's views as an amicus will necessarily be shaped by thegovernment's position in previous cases raising similar issues, the relevantadministrative positions taken by a government agency, and the government'sinstitutional interests.

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Chamber and the Solicitor General opposed one another. The Bush administration's reputation as a proponent of business interests suggests that, when it took a position before the Court against the interests of business, those arguments would have carried a fair measure of credibility with the Justices. And our study seems to bear this out: although the Chamber prevailed in twenty-one of the twenty-two cases in which the government either supported the Chamber or did not participate, the Chamber lost in thirteen of the fourteen cases in which the Solicitor General supported the other side as amicus curiae. The government's success rate in these fourteen cases is tempered somewhat by its poor showing in the four cases in which it was a principal party and the Chamber filed an opposing amicus brief. But even if we consider all of the cases in which the government participated (whether as a party or as amicus), the Solicitor General still fared quite well when it opposed the Chamber, prevailing in more than seventy-two percent of such cases.46

The potential influence of the Solicitor General in the Roberts Court's resolution of business cases complicates any conclusions we might draw about the current Court's general disposition towards business interests. It suggests that the Court has cared as much-and perhaps more-about the views of the federal government as those of the business community. Indeed, the recent spate of cases going against business interests and in favor of the government perhaps could be seen to indicate that the Roberts Court is more "progovernment" than "pro-business," and that the Court's sympathy for commercial enterprise may actually be

46. There may be room for debate on whether the cases in which the government appears as an amicus shed more light on the significance of the government's position than cases in which the government is a principal party. To a certain extent, the government has greater freedom to shape its position when it appears as an amicus: the government will not have been involved in the litigation as a party and therefore will not be constrained by any positions taken in prior proceedings in the case; and conversely, when the government is a party to the proceedings, it generally defends a favorable result unless there is no reasonable argument supporting it. The difference in the government's freedom to develop its position may be limited, however, because the government's views as an amicus will necessarily be shaped by the government's position in previous cases raising similar issues, the relevant administrative positions taken by a government agency, and the government's institutional interests.










moderating.But these conclusions, too, are problematic. As to the

influence of the Solicitor General, there are three problems inconcluding that the Roberts Court is "pro-government" inbusiness-related cases. First, there was likely a pre-existingideological affinity between the Roberts Court and the Bushadministration. After all, two of the Justices currentlyserving on the Court were nominated by President George W.Bush, and five of the remaining seven Justices wereappointed by Republican Presidents.47 Thus, when theSolicitor General argued for certain positions, the Court wasapt to be receptive. In other words, the win rate of theSolicitor General may simply reflect the fact that the Courtand the Bush administration tended to see these legal issuesthe same way.

Second, as discussed above, given the Bushadministration's ideological reputation, its arguments againstbusiness likely had a fair measure of credibility with theCourt. To some extent, they represented arguments againstideological interest, and thus carried a special imprimatur ofreliability. Thus, the Solicitor General may have beeninfluential, but more due to the administration's ideologicalreputation than a general inclination by the Roberts Court toside with the federal government.

Finally, it is important to keep in mind that the SolicitorGeneral's record was hardly perfect. Specifically, in all fourcases in which the government was a principal party (ratherthan an amicus) and was opposed by the Chamber, the Courtruled against the Solicitor General and in favor of theChamber's position.

Taken together, these considerations mean that theresults of our study cannot be taken to show that the SolicitorGeneral's views are more important to the Roberts Courtthan those of the business community. To make the pointmore concretely, the Roberts Court's responsiveness to

47. See Rosen, supra note 2. For the most part, Justice Breyer's recordseems to have borne out these views. See, e.g., Philip Morris USA v. Williams,549 U.S. 346 (2007) (opinion for the Court of Breyer, J.) (holding that punitivedamages award based on third-party harm was precluded by the Due ProcessClause); Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (opinion for theCourt of Breyer, J.) (holding that District of Columbia tort law is preempted byfederal statute).



moderating. But these conclusions, too, are problematic. As to the

influence of the Solicitor General, there are three problems in concluding that the Roberts Court is "pro-government" in business-related cases. First, there was likely a pre-existing ideological affinity between the Roberts Court and the Bush administration. After all, two of the Justices currently serving on the Court were nominated by President George W. Bush, and five of the remaining seven Justices were appointed by Republican PresidentsY Thus, when the Solicitor General argued for certain positions, the Court was apt to be receptive. In other words, the win rate of the Solicitor General may simply reflect the fact that the Court and the Bush administration tended to see these legal issues the same way.

Second, as discussed above, given the Bush administration's ideological reputation, its arguments against business likely had a fair measure of credibility with the Court. To some extent, they represented arguments against ideological interest, and thus carried a special imprimatur of reliability. Thus, the Solicitor General may have been influential, but more due to the administration's ideological reputation than a general inclination by the Roberts Court to side with the federal government.

Finally, it is important to keep in mind that the Solicitor General's record was hardly perfect. Specifically, in all four cases in which the government was a principal party (rather than an amicus) and was opposed by the Chamber, the Court ruled against the Solicitor General and in favor of the Chamber's position.

Taken together, these considerations mean that the results of our study cannot be taken to show that the Solicitor General's views are more important to the Roberts Court than those of the business community. To make the point more concretely, the Roberts Court's responsiveness to

47. See Rosen, supra note 2. For the most part, Justice Breyer's record seems to have borne out these views. See, e.g., Philip Morris USA v. Williams, 549 U.S. 346 (2007) (opinion for the Court of Breyer, J.) (holding that punitive damages award based on third-party harm was precluded by the Due Process Clause); Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (opinion for the Court of Breyer, J.) (holding that District of Columbia tort law is preempted by federal statute).
















arguments presented by the Obama administration-particularly if and when the Solicitor General takes positionsunfavorable to business-might differ markedly from whatwe saw during the Bush administration.

Moreover, we should not necessarily interpret theChamber's recent string of losses as an indication that theRoberts Court's "pro-business" predisposition (to the extent itactually exists) has waned. After all, in nearly every case theChamber has lost during the tenure of the Roberts Court, areputedly pro-business Bush administration opposed theChamber. These decisions may therefore indicate little morethan that, although the Court is favorably inclined towardsbusiness interests, it is not so favorably inclined as to rule forbusiness litigants even when an apparently pro-businessgovernment argues that the law will not permit such aresult.' In other words, the Chamber's losses may onlytestify to a very strong signaling effect attached to anti-business arguments presented by a Republican SolicitorGeneral.

CONCLUSION

In the end, much remains uncertain about the degree towhich the Roberts Court is influenced by the views of thebusiness community or the federal government. To the extentsuch descriptors like "pro-business" or "pro-government" aremeaningful, it is too soon to tell whether the Roberts Court isone or the other, neither, or both. For example, the Court's2007 Term, which included decisions such as Riegel v.Medtronic, Inc.49 and Chamber of Commerce v. Brown5°-decisions agreeing with the Solicitor General that the

48. This point has not evaded the press. As Linda Greenhouse wrote afterwitnessing an oral argument in which she believed that the Court would sideagainst employees even when the government supported them: "Beneath thesurface of a Supreme Court argument on Monday in a case of job-related agediscrimination was a surprising question: has the Supreme Court drifted so fartoward the employer's side in job discrimination cases that it is now to the rightof the Bush administration?" Linda Greenhouse, Justices Express Skepticism ina Discrimination Case, N.Y. TIMES, Dec. 4, 2007, at A26. As it turns out, theCourt unanimously accepted the government's general position in that case.See Sprint[United Mgmt. Co. v. Mendelsohn, 128 S. Ct. 1140, 1147 (2008).

49. Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008).50. Chamber of Commerce v. Brown, 128 S. Ct. 2408 (2008).

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arguments presented by the Obama administrationparticularly if and when the Solicitor General takes positions unfavorable to business-might differ markedly from what we saw during the Bush administration.

Moreover, we should not necessarily interpret the Chamber's recent string of losses as an indication that the Roberts Court's "pro-business" predisposition (to the extent it actually exists) has waned. After all, in nearly every case the Chamber has lost during the tenure of the Roberts Court, a reputedly pro-business Bush administration opposed the Chamber. These decisions may therefore indicate little more than that, although the Court is favorably inclined towards business interests, it is not so favorably inclined as to rule for business litigants even when an apparently pro-business government argues that the law will not permit such a result.48 In other words, the Chamber's losses may only testify to a very strong signaling effect attached to antibusiness arguments presented by a Republican Solicitor General.

CONCLUSION

In the end, much remains uncertain about the degree to which the Roberts Court is influenced by the views of the business community or the federal government. To the extent such descriptors like "pro-business" or "pro-government" are meaningful, it is too soon to tell whether the Roberts Court is one or the other, neither, or both. For example, the Court's 2007 Term, which included decisions such as Riegel v. Medtronic, Inc. 49 and Chamber of Commerce v. Brown50-

decisions agreeing with the Solicitor General that the

48. This point has not evaded the press. AB Linda Greenhouse wrote after witnessing an oral argument in which she believed that the Court would side against employees even when the government supported them: "Beneath the surface of a Supreme Court argument on Monday in a case of job-related age discrimination was a surprising question: has the Supreme Court drifted so far toward the employer's side in job discrimination cases that it is now to the right of the Bush administration?" Linda Greenhouse, Justices Express Skepticism in a Discrimination Case, N.Y. TIMES, Dec. 4, 2007, at A26. As it turns out, the Court unanimously accepted the government's general position in that case. See SprintiUnited Mgmt. Co. v. Mendelsohn, 128 S. Ct. 1140, 1147 (2008).

49. Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008). 50. Chamber of Commerce v. Brown, 128 S. Ct. 2408 (2008).




CONCLUSION








CONCLUSION






relevant state law claims were preempted-led many toconclude that the Justices were sympathetic to businesslitigants' expansive conceptions of federal preemption. Butthe Court's recent 2008 Term decisions in Altria Group, Inc.v. Good5 and Wyeth v. Levine52-both of which rejectedpreemption claims in important contexts, one consistent withthe position of the Solicitor General and one in opposition toit-have muddled the picture considerably. Perhaps thesupposed "preemption wave" has crested, even when thefederal government supports such claims. Or perhaps the"cwave" was always more perception than reality.

Regardless, it is possible the picture will grow clearer inthe near future. We may learn a fair amount as the RobertsCourt begins to render decisions in a new ideologicalenvironment, responding to arguments presented by a federalgovernment presumably with a different set of legal policypriorities. Because the Court is apt to be less ideologicallyaligned with the Obama administration than it was with theBush administration-and because the new SolicitorGeneral's arguments against business interests are unlikelyto have the same signaling effect to the Justices as those ofthe past administration-upcoming decisions pitting theChamber of Commerce against the Obama administrationmight well afford us a new, more illuminating perspective onthese questions. Time will tell.

51. Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008) (holding that state lawconsumer fraud claims concerning the marketing of cigarettes as "light" or "lowtar" are not expressly preempted by the Federal Cigarette Labeling Act orimpliedly preempted by the regulatory actions of the Federal TradeCommission).

52. Wyeth v. Levine, 129 S. Ct. 1187 (2009) (holding that the Food and DrugAdministration's approval of a pharmaceutical as "safe and effective" with aspecific warning label does not preempt state tort failure-to-warn claims).



relevant state law claims were preempted-led many to conclude that the Justices were sympathetic to business litigants' expansive conceptions of federal preemption. But the Court's recent 2008 Term decisions in Altria Group, Inc. v. Good51 and Wyeth v. Levine52-both of which rejected preemption claims in important contexts, one consistent with the position of the Solicitor General and one in opposition to it-have muddled the picture considerably. Perhaps the supposed "preemption wave" has crested, even when the federal government supports such claims. Or perhaps the "wave" was always more perception than reality.

Regardless, it is possible the picture will grow clearer in the near future. We may learn a fair amount as the Roberts Court begins to render decisions in a new ideological environment, responding to arguments presented by a federal government presumably with a different set of legal policy priorities. Because the Court is apt to be less ideologically aligned with the Obama administration than it was with the Bush administration-and because the new Solicitor General's arguments against business interests are unlikely to have the same signaling effect to the Justices as those of the past administration-upcoming decisions pitting the Chamber of Commerce against the Obama administration might well afford us a new, more illuminating perspective on these questions. Time will tell.

51. Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008) (holding that state law consumer fraud claims concerning the marketing of cigarettes as "light" or "low tar" are not expressly preempted by the Federal Cigarette Labeling Act or impliedly preempted by the regulatory actions of the Federal Trade Commission).

52. Wyeth v. Levine, 129 S. Ct. 1187 (2009) (holding that the Food and Drug Administration's approval of a pharmaceutical as "safe and effective" with a specific warning label does not preempt state tort failure-to-warn claims).












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