OUT OF BALANCE:

In June of this year, CAC released a study examining Supreme Court cases in which the U.S. Chamber of Commerce participated since Justice Samuel Alito joined the bench in January 2006. As revealed by that study, the Chamber won 68% of the cases in which it participated, mainly the product of a cohesive conservative majority. Chief Justice John Roberts and Justices Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas collectively voted for the Chamber 74% of the time. In contrast, the Court's liberal/moderate bloc voted for the Chamber 44% of the time during that period. In the October Term 2009 alone, the Chamber won 81% of its cases.

Last month, CAC released a study to answer a question raised by Justice Stephen Breyer -- among others -- regarding whether this success by the Chamber of Commerce in Supreme Court cases is a new development. We compared the success of the Chamber in the Roberts Court to its success under Chief Justice Warren Burger in the five terms before Justice Scalia joined the Court in 1986, a comparable period of stable Court membership that was bookended by Justice Sandra Day O'Connor joining the Court in 1981.

In an article on the study by with Bloomberg news, CAC President Doug Kendall explained the findings of our widely covered new study:

"Justice Breyer's flat wrong in suggesting that the chamber has always done well before the court," said Doug Kendall, the Constitutionality Accountability Center's president. "The Supreme Court's modern pro-corporate tilt -- and particularly its sharp ideological split in favor of the U.S. Chamber of Commerce -- are relatively new developments, traceable to the court's current conservative majority."

During this earlier five-year period, the Chamber lost more cases than it won (winning 15 of 35 cases, a win percentage of 43%). The evidence also showed an interesting ideological split in business cases on the Roberts Court that did not exist during the the Burger Court period that we studied. In other words, as our study concluded, both the pro-corporate tilt of the Supreme Court today and its sharp ideological divide in favor of the Chamber are relatively new developments, traceable to membership changes in the Court's conservative majority.

However, as Doug noted in this piece on the Huffington Post, there has been a significant lack of attention paid to the Chamber's successful "decades-long effort to influence the judiciary."

Please stay tuned to our blog Text & History as we update you on the rulings of the Roberts Court during this Term's business-case-heavy docket.

Federal District Court in Florida Accepts CAC's Brief in Historic Health Care Case

Less than an hour after President Obama signed health care reform into law, Florida Attorney General Bill McCollum, along with a number of other Republican attorneys general, sued the federal government, seeking to have the Patient Protection and Affordable Health Care Act declared unconstitutional.

Last week, CAC filed a motion in this case for permission to file a "friend of the court" brief in support of the United States on behalf of a bipartisan group of more than 71 state legislators from 26 states who believe the Act is constitutional and are working hard to implement the Act efficiently and effectively in their states. On Friday, our motion was granted by the United States District Court for the Northern District of Florida. Accordingly, on November 19, we will be filing a brief on the merits defending the constitutionality of the Act.

In particular, our brief will highlight the state legislative perspective of federalism and state sovereignty, and will demonstrate how the text and history of the Constitution support the conclusion that the Act is constitutional.

We will have all the latest updates on Florida v. U.S. Department of Health and Human Services on Text & History, and in the litigation section of our website.

CAC Brief in 9^th Circuit Supports the Invalidation of Prop 8 in the Marriage Equality Case Perry v. Schwarzenegger

In addition to our work in Florida v. HHS and Perry, on November 16, CAC will file a brief in the Supreme Court in FCC v. AT&T, arguing against AT&T's claim that they have "personal privacy" rights under the Freedom of Information Act. Our brief will summarize many of the legal arguments we made in our narrative report: "A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law."

We will also be filing a brief in the United States District Court for the District of Columbia in Shelby County v. Holder, a case that challenges the constitutionality of the pre-clearance provision of the Voting Rights Act, one of our country's most important civil rights laws. Like our brief before the Supreme Court in the 2008 case NAMUDNO v. Holder, our brief in Shelby County will demonstrate through constitutional text and history that Congress has broad powers under the Fifteenth Amendment to enforce that Amendment's prohibition on racial discrimination in voting, including through the pre-clearance provision of the Voting Rights Act.

In our last newsletter, we discussed the briefs that we filed in United States v. Arizona, Williamson v. Mazda Motor, and AT&T v. Concepcion. Oral arguments have since been heard in all three cases. CAC President Doug Kendell and Chief Counsel Elizabeth Wydra live-blogged the Ninth Circuit hearing in United States v. Arizona on November 1. Elizabeth also recapped the Supreme Court hearings in Williamson on November 3 and AT&T v. Concepcion on November 9.

We will continue to have all the latest information on our cases up on Text & History and the litigation section of our website.