Reshaped Supreme Court Could Aim at Regulatory Power

Oct 9, 2020Federal Regulation, News

After the death of Justice Ruth Bader Ginsburg last month and the subsequent nomination of Judge Amy Coney Barrett to replace her on the Supreme Court, many expect the reshaped, conservative-dominated Court to be more agreeable for business on many key issues such as employment and arbitration. A new Trump pick could also benefit small businesses, management interests, and oil and gas drillers.

“Significantly, in recent years, Justice Ginsburg was the justice most likely to reject corporate-backed positions in business cases and to vote instead in favor of workers, consumers, or the government,” said Brian Frazelle, appellate counsel of the Constitutional Accountability Center according to Bloomberg Law

The court has increasingly enforced arbitration, a trend likely to continue according to Scott Gant, a partner at Boies Schiller Flexner who argued a debt collection case in which Ginsburg was the only dissenter siding with the debtor. Amy Coney Barrett, if confirmed by the Senate,would likely rule in favor of corporate interests. An analysis by government watchdog Accountable.US found that Barrett ruled in favor of corporations in 76 percent of the 55 cases she heard during her time on the 7th Circuit Court of Appeals.

Alternatively, there are some business cases where conservative political interests do not line up with corporate ones, namely the constitutionality of the Affordable Care Act, which will be argued after the upcoming presidential election. A conservative majority could also decide if employers can use salary history to determine compensation, which could lead to pay gaps for women, said Michael Foreman, law professor at Penn State University.

The Supreme Court could reduce regulatory power of federal agencies, possibly by overturning 1935’s Humphrey’s Executor ruling that the president can only fire an independent agency head for cause. In June, the court ruled in Seila Law v. CFPB that the president can remove the director at will, and will consider removal protections for the head of the Federal Housing Finance Agency in the coming term.


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