When we think of monumental Supreme Court decisions, we usually think about cases that fuel the culture war, such as abortion, affirmative action, marriage or racial equality. To our detriment, we often ignore those cases regarding business.
The justices recently heard arguments for two corporate cases dealing with herring fisheries: “Loper Brist Enterprises v Raimondo” and “Relentless, Inc v Department of Commerce.” Although highly technical, the decisions rendered in the cases this coming June could have devasting consequences on how government agencies set and enforce regulations on businesses. This could affect our environment, food, medicine and transportation.
Trump’s conservative-leaning Supreme Court also stands ready to overturn the 1984 “Chevron v Natural Resources Defense Council” decision. This case determined that when a law enacted by Congress appears dubious, the Court will accept what has become known as the “Chevron deference.” This allows the law’s interpretation by government agencies with the most expertise in the subject to take precedence.
Hence, agencies such as the Environmental Protection Agency can establish and implement complex environmental regulations affecting corporations that are not explicit in the laws established by Congress.
One company impacted by the original 1984 decision was Koch Industries, worth $115 billion in 2020. The Koch brothers’ multi-national corporation manufactures, refines and distributes petroleum, among other endeavors. In their quest for radical “laissez-faire,” they were determined to dismantle the guardrails that had been put in place to protect people from savage, unfettered capitalism.
Keeping their eyes on the prize, from 1997 through 2017, the Koch brothers gave more than $6 million to the Federalist Society, a nonprofit institute designed to recruit and get conservative and libertarian judges appointed to the court. The Trump presidency and Republican-controlled Senate were a bonanza for Koch, providing a once-in-a-lifetime opportunity to change the ideological balance of the Supreme Court.
The Kochs were never interested in cultural wars, but rather the Court’s pivotal role in determining the degree of regulatory power corporations face. To that end, they established a so-called grassroots army of volunteers.
Americans for Prosperity coordinated national campaigns to ensure the appointments of Trump’s nominees, Neil Gorsuch and Brett Kavanaugh. The efforts just to get Kavanaugh on the bench ran into seven figures.
With Ruth Bader Ginsburg’s death, Trump nominated Amy Coney Barrett. Charles Koch cared less about her views concerning “Roe v. Wade” than her stance on “Chevron v. Natural Resources Defense Council.”
Barrett won Koch’s endorsement and the support of his vast political networks when she signaled some precedents should be overturned, ascribing her judicial philosophy to former Justice Antonin Scalia.
Gutting the Chevron decision would be the culmination of decades of Koch’s political activism. Barrett and other justices appointed by Trump sought to return the favor for Koch’s influence.
Their opportunity came with the 2022 “West Virginia v. EPA” decision, which was geared to weaken the Chevron case. Determining Congress never gave the EPA broad authority to shift the country away from fossil fuels, the MAGA Court rendered the EPA toothless to address climate change.
Fortunately, Democrats were able to slip a provision authorizing and empowering the EPA to enact such regulatory policies into the 2022 Inflation Reduction Act. This was achieved despite unanimous Republican opposition.
The Chevron decision is being threatened once again as the Supreme Court deliberates the two cases dealing with fishing regulations. The herring fishermen in both cases are represented by two groups financially tied to Charles Koch— Cause of Action Institute and the New Civil Liberties Alliance.
Regardless of the court’s decision in June, the damage has already been done. Deregulation is now the norm.
Since its beginning in 2005, the Roberts Court has been the most pro-corporate court since World War II. Not since the early 20th century has the Supreme Court struck down such a wide range of federal regulations on businesses, ensuring a true laissez-faire, neoliberal economy.
The Constitutional Accountability Center, a non-profit, progressive think tank, conducted a study demonstrating that, since justices Roberts and Alito joined the Court, the Chamber of Commerce has prevailed in 70 percent of its cases.
Compare this to the sharp break from the Rehnquist Court (1994-2005), when the Chamber prevailed only 56 percent of the time. In the Burger Court (1981-86), the Chamber only won 43 percent of its cases.
Since the beginning of the Taft Court in 1921, according to another study, the current Court is the most pro-corporate Court of all time. In 2020 alone, when the Court heard a case pitting a business against a non-business entity, the business prevailed 83% of the time.
Based on court rulings, the six justices with the most pro-business voting records in history, all nominated by Republican presidents, are currently sitting on the bench– Barrett, Kavanaugh, Gorsuch, Alito, Roberts, and Thomas.
Even the least business-friendly liberal justice, Sonia Sotomayor, ruled in favor of business 48% of the time. Former justice Ginsburg wasn’t far behind, siding with business-friendly rulings in 42.7% of cases. Compare this to Earl Warren of the Warren Court (1953-1969), who sided with business only 25.3% of the time.
This barrage of pro-business rulings allows companies to operate without fear of litigation by those harmed by their actions, products, or wrongdoing, be they employees, customers, or the public. The words of former President Ruther B. Hayes (1877-1881) ring true when he said, “This is a government of the people, by the people, and for the people no longer. It is a government by corporations, of the corporations, and for the corporations.”
Professor of Social Ethics and Latinx Studies at Iliff School of Theology in Denver, Colorado, and a contributing correspondent at Good Faith Media.