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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 *654 personal policy objectives and preferences of individual Justices play a critical role in that process. The Article also illustrates how the Court's selection of cases signals its preferences, which in turn influences the agenda of issue-oriented lawyers and thus the dockets of lower courts. This interplay has resulted in the Ninth Circuit playing an unusually important role in the evolution of environmental and natural resources law, as its decisions, which generally favor citizen plaintiffs challenging the authority of agencies to issue permits and engage in planning activities, attract the attention of the business-leaning Roberts Court. This conclusion becomes even more apparent when the contrasting types of plaintiffs and cases filed in the D.C. Circuit are brought to the fore. The Article concludes that there is little on the immediate horizon short of a dramatic change in Court personnel that foretells a change in that story. Finally, the Article holds out only the faintest of hopes that exposing this record may change the behavior of those Justices to whom institutional credibility and public acceptance retain some importance.

Publication Citation

41 Ecology L.Q. 653-682 (2014)