How the Supreme Court Uses the Certiorari Process in the Ninth Circuit to Further Its Pro-Business Agenda: A Strange Pas de Deux with an Unfortunate Coda

Abstract

This Article examines the proposition that the Roberts Court has an unusually strong pro-business slant through the lens of the Court’s certiorari process. The Article uses data from the grant or denial of certiorari petitions filed in environmental cases over a sixteen-year period in both the Ninth and District of Columbia Circuits, selected because each court hears a large number of environmental cases. The recent record in the Ninth Circuit, where environmentalists win below only to lose in the high court, or lose below and subsequently have their petitions denied, is quite different from that in the D.C. Circuit. In the D.C. Circuit, during the same period, the high court has not reversed a single positive environmental decision issued below. In fact, over the same period, there is no instance of the Court granting a petition where environmentalists won in the D.C. Circuit. This Article explores the proposition that the Ninth Circuit has become a unique and useful foil for the Court’s conservative wing to advance its pro-business agenda through the manipulation of the certiorari process. The Article discusses various studies of the Roberts Court, which show that its decisions display a strong business bias, that the Court shapes its agenda through the certiorari process, and that the personal policy objectives and preferences of individual Justices play a critical