Economic Policy And SCOTUS

The media needs to start getting wise to the court's role in shaping the economy.

Last year I wrote about how, increasingly, “the Supreme Court justices have made themselves into economic policy makers” while the media has largely left this undiscussed. That’s been doubly true of this last session, where the Supreme Court showed that it is happy to usurp authority—usually reserved for Congress— to mold markets to fit the whims of the conservative majority (and their benefactors). And yet, major media outlets have remained alarmingly silent on this point. 

In the “Economy” sections of both The New York Times and The Washington Post , the only Supreme Court decision covered since May 15 is Starbucks. The articles found in other sections of the papers largely make no mention of the economic consequences of Supreme Court decisions. Here’s an article from The Times about the Chevron doctrine cases that makes no meaningful mention of the inevitable economic fallout. Similarly, the Post article about Starbucks contains no mention of what the ruling means broadly for the economy. Longtime friend of the program Matt Yglesias, noted in Vox back in 2020 that this asymmetric understanding of how relevant the court is to economic policy has long been leveraged by corporate interests like the Chamber of Commerce to force change that they couldn’t have achieved legislatively. 

This highlights the importance of RDP’s Supreme Transparency project, which traces corporate right wing interest groups influence on the bench. 

Make no mistake, SCOTUS has moved to reshape the economy this term. In Corner Post, it allowed functionally limitless lawsuits against any regulation. The court held that the statute of limitations begins when plaintiffs become aware of the harm, not when the regulation takes effect. That means that any new company can always sue since it, as a party, couldn’t have become aware of the matter until after its incorporation. That gives business-friendly interests an opportunity to challenge every single regulation ever promulgated, at any time. In Moore v. US SCOTUS specifically dodged the question of whether a wealth tax could be legal while intimating that they’d be skeptical, though they remained vague on the fundamental question of whether realization (actually receiving income directly, rather than merely holding assets as their value increases) is required for a tax to be legitimate. Throw in Starbucks, Jarkesy, and the Chevron doctrine cases (Loper Bright and Relentless were bundled together) and the court shifted how much protection workers have from their employers, the ability of regulators to fine companies, how much regulators have to worry about litigation, and the ability of federal agencies to supervise economic activity wholesale. 

In redefining key parts of the labor market and regulation, this court has, more than ever, reserved the power to dictate the structure of our markets. The media really needs to catch up. There’s no excuse for major outlets failing to reckon with the court’s self-appointed role as chief economic rule maker.