Chamber Crushing U.S. in Roberts Court: Who's the Tenth Justice Now?

In today's Washington Post, Michael Gerson became the latest right-wing media figure to join the hysteria surrounding last week's health care reform decision, impugning Chief Justice Roberts' conservatism by accusing him of “deferring whenever possible” to Congress and the Executive. Perhaps he should look closely at the U.S. Chamber of Commerce's recent successes before the Supreme Court.  If the Chamber's record is any indication, Gerson's charge is quite off.

A new analysis from the Constitutional Accountability Center (CAC) points out that the Chamber has a historic win average in the Roberts Court as it continues to push back on government regulation in fields such as labor, environmental, civil rights, and consumer protection policy. And the Roberts Court isn't only siding with big business' attacks on public interest law for the easy questions. In ideologically divided cases, the current right wing of the Court is in near lockstep with the Chamber, with Chief Justice Roberts and Justice Alito taking the pro-business side the most (84% and 92%, respectively). That's a peculiar form of institutional deference.

This escalating trend was just capped with a stellar 7-0 finish in the most recent term, bringing the Chamber's success percentage in the Roberts Court to an unprecedented 68%, as calculated by CAC. And when it comes to challenging the Obama Administration's defense of duly enacted legislation, the Chamber has shredded the U.S. Government's traditional advantage by notching five of those wins over the Solicitor General, who in normal times is considered the “Tenth Justice.” That title for the SG might no longer be apt.

In a 2009 article, Robin S. Conrad, head of the U.S. Chamber of Commerce's high-powered litigation shop, offered her contrarian perspective on what was apparent only three years into John Roberts' tenure. Claiming that her employer, the National Chamber Litigation Center, “clearly lost five out of seven” of its labor cases and went on to lose “nearly half the cases that it participated in during the 2007 Term,” Conrad bemoaned the “myth of a pro-business bias” that stuck to the Roberts Court even before Citizens United unleashed a flood of corporate money into the country's elections. The Chamber's top lawyer did allow, however, that “time will offer more opportunities to understand the Roberts Court's take on business issues.” It turns out she was right: time did tell about the Roberts Court's pro-business tilt.

In fact, previous commentary looks a little understated - current analysis considers the Roberts Court to be “a court of, by and for the 1 percent.” With the close of the October 2011 term, the Chamber just came off one of its best performances before the Court ever, continuing a streak of wins that has turned Conrad's litigation team into perhaps the U.S. Government's most dangerous adversary. A track record that not only supports previous suspicions about Roberts' "corporate court," but also renders pundits' recent complaints about Roberts' deference to the institutional branches in charge of passing and enforcing laws completely untethered from the facts.

Therefore, unless the Chief Justice completely reverses his trajectory and the Chamber stops attacking government's role in providing basic protections, disappointments for pundits like Gerson should be few and far between. More importantly, maybe we can finally retire the term “myth” when discussing the court's "pro-business bias," based on the Chamber's own metrics.

The Supreme Court looks like the Chamber's court right now, and it's running up the score.