For the pro-democracy crowd, the arrival of June each year brings a palpable sense of dread. We are keenly aware that it marks the end of the U.S. Supreme Court’s annual term, when the most controversial decisions are handed down. And each year, we are left to anticipate how exactly our oligarchs in black robes will use these decisions to further aggrandize their juristocratic regime in stark betrayal of our constitutional order.
This was certainly the case two years ago when the Court’s archconservative supermajority toppled decades of settled administrative law with their decision in Loper Bright v. Raimondo. In that case, the Court overturned a 1984 decision called Chevron v. NRDC, which had held that democratically accountable agencies should take the first crack at interpreting their statutory authorities. But under Loper Bright, judges now have this power — and they can freely wield it to advance their personal policy preferences without ever having to answer to voters the way the head of the executive branch does.
Much of the commentary around Loper Bright and its potential legacy has been framed around whether it’s “anti-regulatory,” and that’s not entirely incorrect. Perhaps the better way to think about it, though, is as an anti-democratic decision that will reinforce existing power disparities in our society.
The decision is now nearly two years old, and we are just beginning to collect enough data points to identify potential anti-democratic trends. To this end, my colleague Dr. Federico Holm and I are releasing a new article today that analyzes an initial tranche of decisions under the still-evolving Loper Bright framework. This analysis covers 91 federal court decisions that involve some substantive application of Loper Bright, covering roughly the first 14 months after the decision was made.
One of our initial major findings is that there really is no Loper Bright “framework” to speak of. Instead, courts have been all over the place in how they have applied the decision to controversies before them. But, by stitching these decisions together, something approximating a framework does begin to emerge. Using this framework, we were able to ascertain patterns in how cases were being resolved — which issues were dispositive and whether the resolution of those particular issues tended to favor the agency issuing the rule or the member of the public challenging it.
Our key findings from this analysis include:
In the months ahead, we plan to dig deeper into these data, as well as explore public comment data to discern whether Loper Bright is affecting how sophisticated stakeholders engage in the notice-and-comment rulemaking process. Stay tuned!
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James Goodwin | June 10, 2026
For the pro-democracy crowd, the arrival of June each year brings a palpable sense of dread. We are keenly aware that it marks the end of the U.S. Supreme Court’s annual term, when the most controversial decisions are handed down. And each year, we are left to anticipate how exactly our oligarchs in black robes […]
Sophie Loeb | June 9, 2026
Across the country, legislators are figuring out how to regulate the worst harms from data centers. In North Carolina, the latest bill to do so is Senate Bill 730. Unfortunately, SB 730 is not a step forward in protecting North Carolinians from the harms of data centers. Rather, it is a step sideways, evading needed regulations.
Arvind Salem, James Goodwin | June 8, 2026
The growing use of AI for such complex governance functions as regulatory decision-making is attracting attention. The practice risks putting two existing bodies of public law—those governing the rulemaking process and procurement, respectively—on a collision course: in particular, rulemaking’s emphasis on transparency and procurement’s emphasis on quick commercial transactions that often do not include robust transparency audits. The impetus for this potential clash is that the architecture of many of the AI systems that the federal government employs are developed by private contractors.
Daniel Farber | June 1, 2026
A proposed new rule would replace merit-based funding of science with a heavily politicized process. It would also deprive scientists of the ability to rely on finding for long-term projects. This proposal has no real legal basis. It is likely to undermine American science, giving a boost to China's efforts to take over global scientific leadership.
Alejandro Camacho, Robert L. Glicksman | May 21, 2026
This excerpt is from a commentary originally published in The Conversation. In recent years, at least two dozen local and state governments have sued petroleum companies to recover the billions in costs they have incurred responding to and rebuilding after flooding, storms and wildfires – all of which have been worsened by changes to the […]
Daniel Farber | May 15, 2026
EPA has said it would no longer try to quantify the harms done by the two most serious, widespread air pollutants. Given that these are the most fully understood of all environmental impacts, it’s not clear what future regulations, if any, might still be subject to cost-benefit analysis. This didn’t come out of the blue. Rather, it is the culmination of a series of steps that began when President Donald Trump first took office in 2017.
Federico Holm | May 12, 2026
It is tempting to think that the threat of the current Congress abusing the Congressional Review Act (CRA) is over, now that the deadline to revisit rules implemented during the previous Congress’s session—provided by the CRA’s unique “lookback provision”—has formally passed. But that would be a mistake, as conservative lawmakers have found novel ways to target agency actions from previous administrations.
Steph Tai | May 7, 2026
The question of which court should hear a case isn’t always as easy as it might seem — and the answer can sometimes make a difference in the potential outcome. For instance, in 2013, the government of Plaquemines Parish, Louisiana, decided to sue several oil companies for violating a 1978 state law that required a state permit for oil production along the Louisiana coast.
Alejandro Camacho | May 5, 2026
The Trump administration recently repealed the U.S. Environmental Protection Agency’s 2009 endangerment finding—the scientific and legal determination that greenhouse gases threaten public health and welfare that has anchored federal climate regulation for nearly two decades. Environmental Protection Agency Administrator Lee Zeldin called the finding “the Holy Grail of federal regulatory overreach.” Within weeks, a coalition of more than 20 states filed suit in the U.S. Court of Appeals for the D.C. Circuit to reverse the repeal. The legal battle that follows will help define American environmental policy for a generation. Brigham Daniels and I did not plan the timing of our new book, Lessons for a Warming Planet: A Vital History of US Environmental Law, to coincide with this particular legal conflict. But we could not have chosen a more clarifying moment for its release. The endangerment finding repeal is not an aberration—it is a recognizable recurrence in a history that stretches back centuries. Law has always been the primary engine of both environmental exploitation and protection in the United States.