What Does a 6–3 Court Mean? (Part II)

When it comes to economic matters — a different story than the culture war

Tim Wu

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In my last post on a 6–3 conservative Court (in which, yes, Brett Kavanaugh may well be the swing justice) I suggested that, when it comes to the highly divisive social and “culture war” issues, like abortion, school prayer, that at least in the short term, the 6–3 court will have the result of dividing the country even further. That can be different than some imagine: overruling Roe will not illegalize abortion everywhere, but rather lead to it being banned in most of the South, much of the Middle West, but not the east and West Coasts or Illinois.

But what about economic matters? Might the 6–3 Court recreate the jurisprudence of the Lochner era; that is, make much present economic regulation unconstitutional? Is it so long to the administrative state? What about the Affordable Care Act?

As for what this will mean more practically — are we entering a period where control of big business will be near-impossible, because of the Court and its composition?

My answer, following 3 predictions, once again is to suggest that the Big Blue State legislatures (the Big Blues) are going to be very important. That answer will make sense in a minute.

First, I would predict three things:

  1. That, using its statutory authority, the 6–3 majority will weaken the federal statutory regulation of the economy created by the New Deal and the 1960s. It may also knock out a lot of rules. Generally, the federal agencies will lose a lot of cases.
  2. The 6–3 majority will continue to use the First Amendment, and possibly the Fifth Amendment, as an anti-regulatory tool that favors the interests of large corporations; yet its ultimate reach will be limited, and;
  3. The Big Blues will act to strengthen the economic legislation that is weakened or eliminated by the Court

If these are correct, it suggest that

  1. The slightly obscure question of preemption will swim into central importance, and will possibly divide this court.

The current ongoing fight over Net Neutrality helps explain what I mean by this last point. The Obama…

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Tim Wu

Professor at Columbia University; author of “The Curse of Bigness,” “The Attention Merchants,” and “The Master Switch;” veteran of Silicon Valley & Obama Admin.