Summary

With respect to the corporate deregulatory agenda, this year’s Supreme Court term made good on its promise. As feared, the Court profoundly reshaped settled doctrine in multiple areas of administrative law, aiding big business and other moneyed interests while hindering the enforcement of laws designed to benefit the public. In its zeal to weaken the reach of regulatory agencies, the conservative supermajority bulldozed longstanding precedent in some areas while elsewhere—using a familiar Roberts Court tactic—it distorted precedent beyond recognition to reach a desired outcome.

The biggest takeaway from this term’s docket involving business and regulation is undoubtedly the Supreme Court’s continued power grab—its relentless shift of policymaking discretion from the elected branches and the agencies that carry out their orders to unelected judges. This is a Court that, in Justice Kagan’s unflinching words, “disdains restraint, and grasps for power.”

The conservative supermajority pursued its agenda most notably in a trio of cases decided 6-3. In Loper Bright, the Court jettisoned a 40-year-old precedent that was “part of the warp and woof of modern government,” as Justice Kagan put it in dissent. By empowering judges rather than agency experts to take the lead role in resolving ambiguities in regulatory statutes, the decision will encourage policy-infused court decisions impeding efforts to ensure a clean environment, safe products, honest financial services, fair treatment of workers, and other important goals that Congress tasks agencies with achieving.

In Jarkesy, the Court similarly brushed aside long-established precedent that it had previously called “settled,” newly discovering a constitutional barrier to agencies’ in-house adjudication of certain enforcement actions. By taking a “wrecking ball” to “an unbroken series of cases over almost 200 years,” as Justice Sotomayor noted in dissent, the majority “significantly undermines this Court’s commit­ment to stare decisis and the rule of law.”

Finally, in Corner Post, the conservative supermajority once again made it easier for corporate interests to overturn agency regulations in court. As Justice Jackson’s dissent explained, the decision means “there is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face,” which “allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline.”

In cases like these, the conservative supermajority often styles itself as championing liberty against government overreach. But that self-portrait is belied by the other 6-3 decision this term in which the majority sided with the U.S. Chamber of Commerce and other corporate interests. In City of Grants Pass, the Court tightly constricted yet another decades-old decision—and essentially ignored a line of precedent going back a century—in order to allow local governments to punish their unhoused residents for sleeping in public, even when they literally have nowhere else to go.

Despite the momentous decisions this term benefitting big business, the U.S. Chamber of Commerce’s win-loss ratio was relatively modest. By our count, the Court agreed with the Chamber’s position in 50% of the cases in which the Chamber filed a brief—much less than the Roberts Court’s long-term record of siding with the Chamber 70% of the time. But as usual, none of the Chamber’s losses represented sea changes in the law comparable to its far-reaching wins. Instead of pushing the law in a significantly less corporate-friendly direction, most of these decisions simply maintained the status quo, rejecting some of big business’s most outlandish efforts to rewrite precedent in their favor. For example, the Court rebuffed a preposterous constitutional challenge to the funding of the Consumer Financial Protection Bureau (over the dissent of two conservatives), and it sidestepped a similar effort to hamstring the federal government’s taxing power (with four conservatives indicating that they fully support this effort). Other corporate losses came in relatively small-scale disputes or involved extremely narrow decisions.

The ideological rift between the Democratic-appointed and Republican-appointed Justices remained stark this term. The six conservative Justices voted for the Chamber’s position nearly twice as often as their more liberal colleagues. And tellingly, in every case in which the Court divided 6-3 along ideological lines, the majority adopted the Chamber’s position. Over the past two years—the only terms in which all of the current Justices were on the bench—Justices Alito and Gorsuch have sided with the Chamber 73% of the time, while Justices Jackson and Sotomayor, at the other end of the spectrum, have done so roughly 42% of the time.

Judged by the numbers alone, this was an unremarkable term for the success of corporate interests. But, as is often the case, the numbers don’t tell the whole story. When it comes to substance, the Court’s radical constriction of agency regulatory efforts will likely reverberate for decades to come.