Business, The Roberts Court, and the Solicitor General: Why the Supreme Court's Recent Business Decisions May Not Reveal Very Much

Authors

Sri Srinivasan, Partner, O'Melveny & Meyers, Washington D.C.Follow
Bradley W. Joondeph, Santa Clara University School of LawFollow

Document Type

Article

Publication Date

2009

Abstract

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 findings 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 definitive conclusions about the Roberts Court’s responsiveness to American business and the federal government.

Automated Citation

49 Santa Clara L. Rev. 1103 (2009)