This Group’s Record in Front of the Roberts Court Is Mind-Boggling

In a provocative dissenting opinion, Justice Ketanji Brown Jackson recently called out her colleagues on the Supreme Court for appearing “overly sympathetic to corporate interests.” Objecting to a decision allowing fuel companies to sue over clean-air rules that don’t regulate those companies, Jackson described how “moneyed interests” seem to “enjoy an easier road to relief in this Court than ordinary citizens.” Justice Sonia Sotomayor later echoed that sentiment in a different case, highlighting the court’s reluctance to constrain “regulated businesses” while imposing “Kafkaesque” rules on other litigants, such as “politically disfavored noncitizens.”

Jackson and Sotomayor are right to be concerned about the court’s bias toward industry. As the Constitutional Accountability Center has documented, the court has adopted the position advocated by the U.S. Chamber of Commerce in nearly 70 percent of its cases since John Roberts became chief justice 20 years ago. Some terms, the Roberts court has sided with the Chamber 80 percent, 90 percent, and even 100 percent of the time. That is a sharp increase from prior decades, when the Chamber’s success rate hovered around 50 percent.

Even this remarkable success rate does not fully capture the advances big business has made under the Roberts court. The court’s pro-corporate decisions routinely yield landmark rulings that bulldoze settled doctrine in favor of industry. Take, for instance, the recent trio of cases imposing limits on judicial deference to agency legal views, cutting back on agencies’ ability to adjudicate certain matters in-house, and brushing away time limits on challenging agency regulations. Each decision undermined long-standing precedent, making it more difficult to enforce laws meant to ensure safe workplaces and products, a clean environment, and fair financial dealings.

Industry’s “losses” at the Supreme Court, by contrast, are often simply failures to reshape the law even more aggressively in its favor. In these cases, the court maintains the status quo, but it almost never moves the ball significantly in favor of consumers, workers, or the environment. This term, for instance, the court declined to expand the “nondelegation” doctrine, which addresses when Congress can give policymaking authority to agencies, something corporations have long urged to make it more difficult for agencies to regulate them. But the court’s rejection of that effort simply reaffirmed precedent going back a century—and the Chamber has claimed that even the court’s opinion in this case implicitly signals a more restrictive approach to agency authority.

This lopsided pattern means that efforts to promote corporate accountability at best tread water, while industry victories regularly reshape the legal landscape.

That dynamic is exacerbated by how the court selects cases to hear. Overwhelmingly, the justices choose to review lower-court decisions that go against corporate interests—rarely the opposite. In some recent terms, over 90 percent of the business cases the court chose to hear were corporate challenges to lower-court rulings that favored individuals or the government over industry. By stacking the deck this way, the court gives big business plenty of opportunities to overturn unfavorable decisions, while avoiding putting corporate victories in jeopardy. To illustrate just how skewed the court’s practice has been, during one five-year period the court reversed only two lower-court victories for industry, while reversing nearly 50 lower-court victories for plaintiffs and the government.

Big business’s newfound success is partly driven by another trend that has emerged under Chief Justice Roberts: a deep rift between the Democrat- and Republican-appointed justices in business cases. Based on the numbers, the court’s more liberal wing—not its conservative bloc—appears to be following Roberts’ professed model of a neutral umpire calling balls and strikes. The more liberal justices have typically voted for the Chamber of Commerce’s position roughly 50 percent of the time, while the conservative justices have sometimes done so more than 75 percent of the time. Some years, the conservatives have sided with industry nearly twice as often as their colleagues. And tellingly, when business interests prevail, conservative justices almost never dissent.

With the recent comments by Jackson and Sotomayor, the court’s own members are now calling attention to this apparent bias. And the conservative supermajority has been unable to muster a response. Justice Brett Kavanaugh attempted to refute Jackson’s accusation that the court acts inconsistently when deciding who to let through the courthouse doors. His response was to cite a list of cases that he claimed showed otherwise. But this list, strikingly, does not include a single case in which the court allowed individuals to sue corporations, or prevented corporations from suing the government.

What the record actually shows is that the court invariably sweeps aside procedural roadblocks when industries sue to evade oversight and accountability. But the court does not offer the same solicitude to individual plaintiffs attempting to redress corporate abuse.

In the 2010 case Free Enterprise Fund v. PCOAB, for example, the court permitted industries to challenge oversight by agencies they claim are unconstitutional, despite lacking any statutory right to do so. In the 2019 case Seila Law v. CFPB, it held that companies can pursue these sorts of challenges to agency authority without showing that the alleged constitutional flaw made a difference in their case. Both decisions led to major rulings cutting back on agency independence. In West Virginia v. EPA in 2021, the court allowed fossil-fuel interests to sue over an environmental policy that would never have gone into effect regardless, giving the conservative majority the opportunity to endorse the so-called major questions doctrine, which makes it more difficult for Congress to give agencies the authority they need to regulate business. More recently, in Axon Enterprise v. FTC, the justices allowed litigants to go directly to court with objections to agency procedures, instead of waiting for the agency to first complete its proceedings. And in Diamond Alternative Energy v. EPA, which prompted Jackson’s remarks this term, the court let fuel companies challenge an emissions standard based on supposedly “commonsense” speculation about its effects—precisely what the court has long prevented individuals and nonprofits from doing.

Compare this indulgent approach with how the court treats other litigants. In sharply divided decisions, it has blocked consumers and employees from leveling the playing field by joining together in class actions. It has repeatedly shut plaintiffs out of court entirely by shunting them into forced arbitration. The court has made itself, not Congress, the arbiter of what counts as an “injury” that can justify a lawsuit—and in the court’s view, being erroneously designated as a terrorist by credit bureaus does not qualify. The court has prevented unhoused people from using the Eighth Amendment to challenge laws that punish them for sleeping outdoors. It has prohibited victims of human rights abuses from suing companies that aided those abuses, pronouncing corporations uniquely immune under a 200-year-old law. It has contorted statutory language to stop immigrants from obtaining effective relief against wrongful detention and deportation. And it has barred individuals from challenging government surveillance because the harms they complained about were too speculative—a lesson the court forgot when industry plaintiffs came before it.

As Justice Jackson noted, “the Constitution does not distinguish between plaintiffs whose claims are backed by the Chamber of Commerce and those who seek to vindicate their rights to fair housing, desegrated schools, or privacy.” But if anyone doubts the reality of that statement in practice, the court’s one-sided record “will do little to dissuade them.”

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