Corporate Interest Group Now The Most Victorious Litigant In The Supreme Court, Replacing The Justice Department

Normally, the federal government wins nearly seven out of ten cases it argues in the Supreme Court. This is true for a variety of reasons: the Solicitor General’s office includes some of the best and most experienced Supreme Court advocates in the country; many of the federal government’s cases are criminal cases, where the conservative justices typically favor the government; and longstanding precedent requires the justices to defer to the federal government’s views in certain kinds of cases. Perhaps most importantly, the justices have typically valued the Solicitor General’s opinion since the SG represents a co-equal branch of government that, unlike the judiciary, is lead by someone that is actually elected by the American people.

As Adam Winkler points out, however, the Roberts Court appears to care very little what the Obama Administration has to say:

Studies show that, in the past, the solicitor general wins most of his cases. When he is a party to a Supreme Court case, the solicitor general wins nearly 70 percent of the time. This term that number looks to flip. If the Court rules against Obama in the health care case and the other major decision yet to come down — on Arizona’s controversial immigration law — the federal government will have lost nearly 65 percent of its cases.

To date, the Court has ruled against the Obama administration in over half the cases in which the federal government was a named party. The justices rejected Obama’s positions in important cases dealing with GPS surveillance of vehicles; the scope of religious institutions’ exemption from employment discrimination law; the formatting of passports; and procedures under the Clean Water Act, among others. . . . This Court’s anti-Obama leanings even led to victories for Native American tribes, who over the course of American history have won precious few cases against the federal government.

A partial explanation for this shift could be that the justices have found a different team of elite lawyers they would rather take advice from — America’s top corporate lobbying group. So far this term, the Roberts Court sided with the United States Chamber of Commerce in every single one of the cases where the Chamber expressed a view. Moreover, the Chamber’s win rate for the duration of the Roberts Court closely matches the very high win rate once enjoyed by the Solicitor General. According to the Constitutional Accountability Center, the Chamber’s overall win rate before the Roberts Court is 68 percent, or 60 of 88 cases: