Pro-Business Supreme Court to Be Tested in Regulatory Showdown
A pair of cases that could reshape the future of government regulation cast the Roberts Court in a familiar light, as the most pro-business court in a century.
The justices Wednesday will consider whether to overturn a 1984 Chevron ruling that has the potential to reach far beyond the herring fishermen who brought the cases.
A victory for the fisherman seems all but certain, an outcome that reflects both what corporate America wants and the conservative justices’ fundamental notions about how government should be structured and what role agencies should play, court watchers say.
The cases challenging Chevron “may well be a place where business interests, speaking broadly, align with the justices’ concerns over the administrative state,” said Jonathan Adler of Case Western Reserve University School of Law, who wrote a 2016 book on the court’s reputation.
Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce challenge a National Marine Fisheries Service rule that requires herring fishing companies to foot the bill for federal monitors, “to the tune of 20% of their revenues,” according to a brief by the fishermen.
They are the latest in a long line of those seemingly attempting to rein in the so-called administrative state, which many conservatives on the court view as out of step with original design of the Constitution.
And businesses largely agree. According to a brief filed by the US Chamber of Commerce, agencies’ “distortion of the respective branches’ proper roles has helped to foster an unpredictable, unstable regulatory landscape” that’s “harmful to businesses.”
Court watchers, looking at the current court’s record in favor of business, anticipate at least a partial win for the fisheries here.
Backed up by the statistics and “any fair examination of the substance of what the court has done over the past decade,” Brian Frazelle, of the progressive Constitutional Accountability Center said, “there’s no doubt this is an aggressively pro-business court.”
A 2023 study shows that the Roberts Court has voted in favor of business interests in 63% of the cases its heard since 2005. That makes it the most likely to favor business in the last 100 years, said Lee Epstein, a professor of law and political science at the University of Southern California and one of the authors of the study.
And it’s more business friendly to business “by quite a distance,” said University of Virginia law professor G. Mitu Gulati, the study’s other author.
Some recent victories have included striking down environmental regulations, limiting when agencies can act on so-called major questions, and making it easier to challenge agency enforcement actions.
Carry the Day
But “the descriptor pro-business doesn’t tell us very much,” Adler said.
That’s in part because “pro-business means a lot of things to a lot of people,” said to Adam White a senior fellow at the American Enterprise Institute, a right-leaning, economically focused think tank.
The reality is that “there’s often business on both sides of the case,” White said, with big businesses often taking positions opposite of small ones and various industries interested in different outcomes.
All that can blur the perception of the court as friendly to business.
Moreover, Morgan Ratner, a partner at Sullivan & Cromwell, said it’s wrong to view the Roberts court as “reflexively” pro-business. The justices aren’t motivated by outcomes that service corporate America, she said.
Instead, it’s the conservative justices’ commitment to anti-regulation “that’s really animating this Supreme Court,” said University of Pennsylvania Carey Law School professor Jill Fisch, and the role that agencies play in our constitutional system of government.
That’s led the court to be skeptical of administrative agencies, and to pull back on the leeway they have to regulate business and other entities, Fisch said.
And the Roberts court has many opportunities to weigh in on the role of administrative agencies because many under Presidents Barack Obama, Donald Trump, and Joe Biden “have been doing novel, aggressive things,” White said.
“That’s where the real political energy is” and “so you’ll necessarily have hard cases” coming to the court,” White said.
Those concerns often translate into a pro-business outcome, but not always, Ratner said. She pointed to the court’s rulings—or lack thereof—on federal preemption of state law, state courts’ ability to haul businesses into their courthouses, and the dormant commerce clause as examples of where these background concerns with the structure of government have translated into outcomes that are bad for business.
There are areas where businesses are not getting what it wants, Adler said. In cases where what the business community wants diverges with the jurisprudential commitments of the justices, it’s the latter that will “carry the day over what matters to business.”
One Way Ratchet
Frazelle, who’s organization filed a brief urging the justices to uphold the Chevron doctrine, agreed that sometimes “when the interests of corporate American come up against those priorities, corporate America might lose.” But “those are pretty rare,” he said.
And a closer look at the entire scope of cases brought to the high court—not just those the justice agree to hear—gives an even more drastic picture of a court on the side of big business, Frazelle said.
The justices are largely accepting only cases for review that offer opportunities to reshape the law in favor of big business, Frazelle said. “But the court isn’t doing the opposite,” and taking up cases that offer opportunities to move the law in favor of consumer protection, environmental law, or employee rights.
So when you look at the cases that the court accepts for review and businesses win-loss record, “it’s a very skewed pool,” Frazelle said. And it “understates their true success.”
Loper Bright and Relentless are good examples, he said.
The cases could have been considered on narrow grounds, affecting just the herring industry and the federal marine fisheries regulator.
Instead, the Supreme Court only agreed to hear the broader issue of whether to overturn the Chevron doctrine, which applies to nearly all administrative agencies, from the Environmental Protection Agency to the Food and Drug Administration. Under that doctrine, courts must defer to an agency’s reasonable interpretation of ambiguous laws.
“The very fact that the court is considering whether to reverse a well-established precedent going back 40 years” in Loper Bright and Relentless “is emblematic of the pro corporate tilt that this court has,” Frazelle said.