The Justices Return – The New York Times


With the Supreme Court’s new term having started this week, I want to use today’s newsletter to give you context on the issue that Adam Liptak — who covers the court for The Times — calls “the story of the term”: business regulation.

Even before the court moved to the right over the past several years, business regulation was an area in which its rulings tended to be conservative. Thirteen years ago, Adam wrote an article explaining that the court led by Chief Justice John Roberts was the most business-friendly Supreme Court in modern history.

Roberts and his colleagues tend to be skeptical of government regulation that tries to protect the environment, consumer safety or workers’ rights. In all these areas, the court has often taken a laissez-faire approach, allowing corporations to behave as their executives think best.

This outlook hasn’t been restricted to Republican-appointed judges, either. Democratic appointees who lean left on social issues like abortion, gay rights and guns have been more conservative on business regulation. This shift has been part of the so-called neoliberal revolution in economic policy that took off in the 1980s. Free markets, according to this view, are more efficient than government can be.

“The modern judge is quite economically libertarian, Republican and Democrat alike,” Adam told me.

Still, there have been limits to the court’s libertarianism. The E.P.A., F.D.A., I.R.S. and many other Washington agencies still exist, after all. If you talk with many corporate executives or their lobbyists and lawyers, you will hear that they feel over-regulated — and they have continued to bring lawsuits trying to lighten the burden of government.

The story of this term, to use Adam’s phrase, is whether corporations will persuade the Supreme Court to go further than it previously has and strike down whole new categories of regulation. Three separate cases raise that prospect.

The justices will hear arguments in the first of those three cases this morning, involving the Consumer Financial Protection Bureau, known as the C.F.P.B. The case’s details are technocratic, but the impact could be large.

When Congress and President Barack Obama created the agency in 2010, after the financial crisis, they funded it using transfers from the Federal Reserve. The goal was to shield the bureau from back-and-forth partisan politics; the Fed is a semi-independent agency for similar reasons. Elizabeth Warren, then a law professor, who helped create the bureau, was worried that Republicans would try to starve its budget.

A banking industry group has argued that this funding structure is illegal, saying that federal agencies should be accountable to Congress. The bureau’s defenders respond that it already is: Congress established the agency by passing a law that funded it in a specific way. To change this arrangement, the defenders say, Congress should have to pass a new bills that a president signs.

Last year, a federal appeals court based in New Orleans — the Fifth Circuit, perhaps the country’s most conservative, having been shaped by President Donald Trump’s appointees — agreed with the plaintiffs. Legal observers aren’t sure what to expect now from the Supreme Court.

On the one hand, conservative justices dominate the court. On the other, at least some of them have seemed uncomfortable with how far the Fifth Circuit has gone in other cases.

An even more significant business case this term involves a 1984 Supreme Court decision that has come to be known by the shorthand “Chevron deference.” Under Chevron deference, the court gave regulatory agencies leeway to interpret laws that Congress had left vague.

Corporate lobbyists have long chafed at the ruling, believing that regulators should have only the powers that Congress has explicitly given them. Undoing Chevron has been a central goal of the conservative legal movement. Conservatives talk about the importance of weakening “the administrative state.”

Both sides in the Chevron case agree that the stakes are large. When Congress passes a law, it cannot anticipate all the ways that the economy will change in coming years. If regulators have only the powers that Congress explicitly gives them, many regulations — on the environment, consumer safety, worker safety and more — would be vulnerable to legal challenges.

“Overruling Chevron,” the Biden administration argued in a recent brief, “would be a convulsive shock to the legal system.”

The third major business case this term involves the Securities and Exchange Commission. Depending how the court rules, the S.E.C. could have less power to pursue fraud cases. The justices have not yet set dates for oral arguments in the Chevron and S.E.C. cases.

  • At Google’s antitrust trial, the C.E.O. of Microsoft testified that Google’s stranglehold over search was so tight that his company could not compete.

  • The striking actors’ union and Hollywood studios had their first talks in months. Negotiations will continue tomorrow.

  • “We’ve been gone so long, ‘The Bachelor’ is now a grandfather”: Late night shows returned for their first broadcasts since the writers’ strike ended.

  • Charlotte Sena, the 9-year-old girl who disappeared at a state park, is safe. The police found a fingerprint on a ransom note and raided a suspect’s home, where Charlotte was hidden in a cupboard.

  • Young children face a greater risk of eviction than any other age group. The risk is most acute for Black children.

  • The Nobel Prize in Physics was awarded to three scientists — Pierre Agostini, Ferenc Krausz and Anne L’Huillier — for their work on electrons.

Americans without a four-year college degree are struggling. Removing B.A. requirements for jobs would help, Anne Case and Angus Deaton write.

Here’s a column by Jamelle Bouie on Biden.

Never too old: At 104, Dorothy Hoffner wanted to skydive again. Watch her jump.

Grizzlies: What’s behind all the recent stories about rogue bears?

Windows to the soul: To fast-track intimacy, an event in Brooklyn encourages daters to engage in extended eye contact.

Lives Lived: Echo Brown mined her life to create a one-woman show about Black female identity and two young adult novels. She died at 39.

N.F.L.: The Seahawks embarrassed the Giants at home last night in a 24-3 win.

M.L.B. playoffs: The baseball postseason starts today with a single question looming: Can anyone beat the Braves?

Recovery: Bronny James, the 18-year-old son of LeBron James who suffered cardiac arrest during practice two months ago, is doing “extremely well,” his father said.

Behind our scenes: If you’re interested in The New York Times, we recommend a new history of the institution. It’s called “The Times,” and Adam Nagourney — a longtime reporter here — wrote it. The company did not have approval over it.

The book, Julia Klein wrote in The Los Angeles Times, is “an often enthralling chronicle of four decades (1976-2016) of management upheaval and digital transformation” and “delivers the gossipy goods, thanks in part to interviews with nearly all the surviving principals.” The central theme is how the company survived the mortal threat of the digital revolution.


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