The Greatest Trick John Roberts Ever Pulled: Convincing the World that Rigged Courts Are Neutral
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Introduction
Who does our government work for? How does our government shape our society? Who gets access to the power of the state when they have a problem or need help?
We often hear these questions in battles over elections, the tax code, or government spending. Yet outside of those loud debates, a quieter, wonkier, yet tremendously consequential fight has been raging. This fight is about who gets to use our courts—the awesome power of the judiciary—to shape our economy and our democracy. Whether victims can hold the largest companies in the world accountable for illegal behavior. Whether a government agency must abandon a rule transferring billions of dollars from big banks to struggling Americans. Whether corporate interests can stifle efforts to protect people when they buy a car, or save for retirement.
One of the greatest lies ever told about our legal system, by none other than Chief Justice John Roberts himself, was that who can access our federal courts is apolitical and neutral. In a 1993 article, Chief Justice Roberts – long before he became a judge – wrote: “Standing is an apolitical limitation on judicial power. It restricts the right of conservative public interest groups to challenge liberal agency action or inaction, just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction.”
At this moment, absolutely nothing could be further from the truth. The federal court system that Chief Justice Roberts sits atop of bears no resemblance whatsoever to this idealized description. Today, our federal courts systematically favor specific people and groups—the rich and corporations—and a specific set of conservative policy outcomes, even when they are contrary to what everyday Americans vote for and say they want. This is the very definition of political.[1]
As former regulators on the front lines of the battle against corporate Goliaths and their abuses, we have seen just how much the deck is stacked against everyday Americans in our legal system. Federal courts now routinely block people from seeking justice from the biggest companies in the world while bending over backwards to help those same companies block any government action that helps human beings at the expense of corporate power and profits. Among other things, the courts continue to allow associations of businesses to procure effectively nationwide relief for corporate interests at the same time that the Court has apparently put the brakes on nationwide injunctions for human beings. The discrepancy between how this branch of government treats corporations and people is having a huge impact on our democratic self-governance, and in turn on our society.
For the sake of our economy and our democracy, we must radically reshape our deeply broken legal system. We must rethink administrative law and even constitutional law, reconsider rules of federal procedure, reimagine federal regulation, and grow capacity at the state level to ensure our system works for everyone, not just the rich and powerful.
I. Standing and Venue Are Fundamentally Political
Standing—who gets to sue in federal court—and venue—where they get to sue—are rarely mentioned when people talk about how our government institutions struggle to address the real economic pain that millions of everyday Americans feel across their lives. Yet standing and venue have played a crucial role in determining whether people and groups can use the weight and tools and authorities of the government to shape the economy, hold accountable those with power and in power, and change or preserve the status quo. Among other things, these doctrines will be crucial factors in determining how much the Trump administration is able to accomplish of its corrupt and lawless agenda, just as standing and venue indisputably determined how much President Biden was able to achieve—or not—for working people.
Standing and venue will continue to determine whether our government has any ability to restrain the power and profits flowing to corporate interests and oligarchs at the expense of everyone else. In turn, what cases the judiciary agrees to hear and whom it turns away will continue to have a big impact on whether people believe the government actually does anything for them—or whether instead many will turn to leaders who deliver chaos but at least promise to shake up the status quo.
Regardless of whether John Roberts was woefully naive or being purposefully disingenuous, the divergence between what is required of corporate interests to get standing and venue in a particular courthouse today and what is required of human beings is profoundly unfair and reeks of hypocrisy. What is going on in our federal courts shows clearly that standing and venue are masquerading as doctrines, when in truth they are just encapsulations of raw political power.
In advocating for the system that we all now live with, conservative jurists contended that their approach to standing and venue would, as then-Judge Scalia put it, “prevent an overjudicialization of the processes of self-governance.” The exact opposite has become true. It is increasingly apparent that our government is dominated by a small number of unelected judges who have appointed themselves the decisionmakers on some of the most important questions regarding how our country governs itself. When, over and over again, the answer is that big business gets to use the power of the state and everyone else gets shut out, trust is lost not only in our courts but in our democracy itself. In the next two Parts, we explore how corporate interests abuse the court system, and how the courts shield them from accountability.
II. How Corporate Interests Abuse the Court System
Chief Justice Roberts gave a tidy summary of standing in his law review article more than thirty years ago: “The plaintiff must allege at the pleading stage, and later prove, an injury that is fairly traceable to the defendant’s challenged conduct and that is likely to be redressed by the relief sought.” This is the standard that courts strictly require human beings to meet when people sue the government or corporations. And when people join together to sue as a class, courts demand that each person has standing and meets the criteria of the Federal Rules of Civil Procedure.
But when associations of businesses—also known as K-street lobbyists and lawyers—sue the government today, completely different rules apply. So-called “associational standing” is at the heart of how corporations abuse the court system. This doctrine allows organizations or associations to stand in as plaintiffs on behalf of their members. In our federal courts, people and companies are typically expected to sue in their own name and explain how their injury warrants the intervention of the federal courts. Yet associational standing allows associations of businesses to get injunctions for all their members, including for companies that have not signed their name to the litigation or met the requirements that plaintiffs would ordinarily need to meet to certify a class. As Professors Michael Morley and Andrew Hessick have written, associational standing “stands in tension with the overall fabric of U.S. law,” where everyone is generally expected to sue for themselves or follow rules to be represented by someone else.
An important and somewhat underappreciated aspect of this doctrine is that it enables business associations to get nationwide relief for industry without technically procuring a nationwide injunction.
The Consumer Financial Protection Bureau’s (CFPB) experience illustrates how associational standing allows corporate interests to manipulate the courts to shape how and for whom the government works. Consider two of several similar matters in which the judiciary allowed the Chamber of Commerce to deploy the power of the court of their choosing, on the most outlandish of bases, to stop the executive branch from taking action to reign in industry abuses and discrimination. The cases clearly demonstrated how big business abuses the courts to destroy the capacity of the state to regulate effectively based on “pinky promise” harm laundered through associations.
The first Chamber case challenged the CFPB’s recognition that, under appropriate circumstances, examination staff should consider whether racial or other forms of discrimination violate statutory prohibitions on unfair, deceptive, or abusive acts or practices. (In other words, whether discrimination is unfair.) The national Chamber of Commerce teamed up with a local chapter in Longview, Texas to handpick venue in the Eastern District of Texas. The plaintiffs filed anonymous, vague declarations that the CFPB’s action would “lead[] to an expansion of the materials that will be relevant to the CFPB’s examination and thus imposes additional examination costs on regulated entities.” In other words, the purported injury was that, at some point in the future, an unnamed financial institution might have to answer questions about their compliance with the law. The plaintiffs never specifically identified even a single such institution, likely because there weren’t any large companies in Longview even theoretically subject to such examinations.
No matter. In a frankly bizarre opinion, Judge Campbell Barker not only granted standing and venue, but decided the merits of the case based on these thin assertions of harm. Judge Barker asserted, falsely, that the CFPB did “not dispute” that the costs of responding to questions “count as injury in fact.” (The CFPB’s brief: “There is a real question as to whether Plaintiffs’ members have been harmed.”) Judge Barker also inexplicably relied on out-of-state declarations from a national business association to grant venue in his courtroom and as the basis for an injunction under the “major questions” doctrine against the CFPB. Although he initially did not purport to grant nationwide relief, Judge Barker’s injunction applied to all present or future members of the national Chamber—meaning that any corporation in the country could avail themselves of the power of the injunction simply by joining the Chamber. (When access to injunctive relief becomes a prominent feature of association membership drives, something has gone off the rails.)
In the second case, the Chamber challenged the CFPB’s closing of a regulatory loophole blessing excessive credit card late fees, which would have saved Americans more than $10 billion per year. The association ran essentially the same play, joining with a local chapter to get standing and venue in Texas—this time, with the Fort Worth Chamber of Commerce for venue in the Northern District of Texas. Since apparently not a single credit card company subject to the CFPB’s regulation was actually based in Fort Worth, the group’s basis for venue was the local chapter’s interest in “cultivat[ing] a thriving business climate in the Fort Worth region.” In the context of this obviously ridiculous assertion, Judge Mark Pittman twice transferred the case to DC, where both the National Chamber and CFPB are based, admonishing the plaintiffs that “[v]enue is not a continental breakfast.” Yet the Fifth Circuit both times granted a writ of mandamus against him, essentially forcing the judge to decide the case himself. Judge Pittman ultimately signed off on the “thriving business climate” nonsense and entered an injunction against the rule—on a nationwide basis.
These are just a few examples, involving only one agency. But these abuses are far from limited to cases involving the CFPB. Over the past few years, cynical suits by business associations killed the efforts by SEC to provide investors with basic information, the FTC to protect servicemembers and others from unscrupulous practices at the car dealership, DOT to stop airline junk fees, and many more.
III. How Courts Shield Corporate Interests From Accountability
Contrast the courts’ treatment of corporate plaintiffs with the way courts handle human beings who are ripped off by those same companies, when they try to hold them accountable for illegal conduct. Take, for example, the TransUnion v. Ramirez case, in which the Supreme Court—over the dissent of Clarence Thomas and three other justices—upended the doctrine of standing under dozens of consumer protection and other laws that had been on the books for decades.
TransUnion had issued a report to a car dealership erroneously identifying the named plaintiff, Sergio Ramirez, as a potential terrorist. The company was poised to disseminate similarly false information about thousands of other people because the company’s mediocre procedure relied entirely on matching people’s first and last names to entries on the federal government’s “watch list.” As Justice Thomas wrote in dissent, this procedure “violated several provisions of the Fair Credit Reporting Act (FCRA) that entitle consumers to accuracy in credit-reporting procedures.”
Yet the Court found that, although Mr. Ramirez had standing based on his showing that the false information about him had already been “disseminated to third-party businesses,” thousands of other people did not because they could not prove that TransUnion had disseminated the false information in their files already. Although Congress clearly intended to prohibit consumer reporting agencies from producing inaccurate credit files, the Court refused to hear claims that did not map onto conceptions of harm that courts recognized at common law back in the 18th century. Accordingly, despite Congress’s clear and specific language indicating that TransUnion broke the law and that companies violating the law owed compensation to victims, the multi-billion dollar corporation escaped accountability. Thousands of people falsely branded as terrorists did not receive justice.
With somewhat shocking audacity, the Chamber of Commerce itself filed a brief in Ramirez urging the Court to close the courthouse door on these people—on the grounds that permitting such claims would “allow[] a wholly idiosyncratic named plaintiff to serve as the standard bearer for a much broader class of individuals.” But, of course, that is exactly what the Chamber itself does when it uses a single company to get relief for all of its members. (Except that the Chamber hides behind anonymous affidavits, rather than naming names.)
In the years since, standing has become the justification for the courts to constantly overrule Congress about when human beings can use the courts to hold corporations and other actors accountable. Ramirez’s discussion of standing has been cited more than a thousand times by lower courts, which have dismissed cases under laws ranging from the Fair Debt Collection Practices Act to the American with Disabilities Act. The harm to everyday people that companies have gotten away with has been truly shocking.
To give just one more example, when a tourism company targeted and lied to members of the military about the cost of a loan, the Eleventh Circuit found that servicemember plaintiffs lacked standing to hold the company accountable because they could not specifically show that they took out the loans because of the misrepresentations. Consider how these ripped-off servicemembers were treated in comparison to the megacorporations that were allowed to sue in the court of their choice based on vague concerns about the “business climate” in Fort Worth, Texas. There is no question why Americans have lower confidence in the judiciary today than ever before.
Now the Trump administration has apparently convinced the Supreme Court to limit nationwide injunctions when people and states sue to put a stop to the administration’s lawless agenda, at the very same time when the Court is unnecessarily hearing “nearly moot” cases brought by “moneyed interests” with weak bases for standing. That change will only amplify the disconnect between the warm welcome that courts give to business associations and the back of the hand that individual people receive.
Conclusion: Where Do We Go From Here?
The state of the legal system today simply is not tenable for those of us who care about an economy that works for everyone, a law that treats people fairly, and a democratic process that reflects the will of the voters. We cannot accept large corporations and wealthy individuals weaponizing our courts to kill any reform threatening their bottom line while avoiding accountability for their own unlawful abuses.
By any measure, the doctrines of standing and venue have abjectly failed to meet the neutral, apolitical standard set out by Chief Justice Roberts so long ago. There is nothing neutral about giving the richest people in our society so much of our government’s power, including effectively a veto over legislation and executive action by duly elected officials. This undemocratic dynamic is itself feeding a very real erosion in our democratic values by undermining people’s faith in institutions and any belief that the government can be a force for good in their lives.
As we have said, “we won’t be able to have an Economy for All or a Care Agenda or an Abundance Agenda—or any other prescription for a given problem or for the country writ large—if we do not confront the obstacles standing in the way of the government’s ability to deliver.”
What can be done?
First, there is value and importance in acknowledging that our federal judicial system is deeply broken. For too long, progressives have been cautious about calling out the politically motivated tactics of judges. To be sure, we desperately need judges applying neutral legal principles to stand up to the Trump administration’s abject lawlessness. But that does not excuse the rot that we have seen creeping across other parts of the judiciary. Much to the contrary, as we have written, “the Trump [a]dministration’s corruption and legal maximalism is part of the same cynical wave that we have seen washing over the courts these past few years.” We should call a spade a spade.
The legal system is rigged. Lawyers, especially those lucky enough to serve our government, sometimes seem reluctant to use that word. We try to make sense of it or discuss ways to navigate it, rather than acknowledging what is right in front us. But “rigged” is the right word for a system allowing the largest corporations in the world to block a duly elected President’s attempts to help people without power, while preventing people from holding those same corporations accountable. This is all about power and politics, pure and simple. And people without power deserve that those who do have it call out the basic unfairness in the system. As long as there are two sets of rules masquerading as jurisprudence, we owe it to the American people to speak out on their side.
Second, the failings of our court system must compel us to rethink constitutional law, civil procedure, and administrative law. We must restack the deck in favor of individuals seeking help from the government and away from companies at war with those efforts. As leading scholars have noted, where these doctrines are today bears little resemblance to their historical antecedents. They have changed before, and they can change again. We don’t purport to have all the answers. But we do know that we need to be pursuing transformational solutions.
Advocates—especially progressive lawyers who will one day again stock White House Counsel and similar places—must develop an actual plan to defend government actions that stand up to corporate power. It should no longer be acceptable for Justice Department leadership to shrug their shoulders and say they tried their best. We should not live in a world where the Chamber’s ability to file a lawsuit is a deciding factor in what type of government we have.
We must put an end to the imbalance between the scrutiny that courts subject human beings to, including when they band together as a class, and that corporations receive. It makes no sense that a business association can get relief for all its present or future members, regardless of their circumstances, when people are denied if each and every one of them cannot show they have each been harmed in a way recognized in the 18th century. We must not accept as settled the insane overruling of Congress’s directives about who can sue for what. Mighty little in the Constitution—just the words “cases” and “controversies” in Article III—supports today’s standing doctrine that prevents human beings from holding corporations accountable.
At the very least, we must demand that the courts subject associations to the same limits on standing and relief that apply to human beings. The judiciary must not again succumb to outrageous right-wing pressure and should instead finally make reforms that it knows are necessary to restore confidence in the system. In the meantime, so long as we have the system that we have, progressives should form their own membership organizations across policy areas to take advantage of the associational standing outlier.
And if the courts refuse to make changes, Congress has the power to mandate reforms. Congress should forbid courts from granting relief to every corporation that happens to join a trade. The Federal Rules of Civil Procedure should be amended to prevent egregious venue shopping by corporate litigants, such as to require that cases be brought where real, named plaintiffs (not local associations) are actually headquartered. Congress should also limit where and what types of claims can be brought against federal government action, such as by requiring courts to consolidate similar cases across the country, which would also reduce venue abuses.
We should also consider which portions of judicial review under the Administrative Procedure Act are serving our democracy well, and which portions should be jettisoned. For example, it is unclear that judicial review of government oversight of industry and corporations—who have no shortage of other mechanisms for ensuring their interests are protected—should be subjected to the same rules of the road as review of the government’s treatment of human beings. It is an understatement to say that the system we have now is overrepresenting their interests in our governance.
Our experience with legal academics during the Biden administration did not exactly suggest they grasped how dire the problems facing our country are. We urged the prestigious Administrative Conference of the United States (ACUS) to take the most basic of steps—endorsing reforms to venue shopping proposed by the Judicial Conference of the United States. Yet academics on ACUS’s Committee on Judicial Review shot down the idea of doing anything even that bold, preferring milquetoast recommendations. At this perilous moment in our democracy, we cannot afford half measures.
Third, we must acknowledge that the Roberts court has destroyed any justification for a disclosure-based consumer protection regime. Across decisions, courts have found that people lack standing—and let companies escape accountability—for failing to provide required information, or even for providing false information, if each and every consumer who tries to hold the company to account cannot show that they acted on the incorrect information. This has dramatically reduced any incentive companies have to actually comply with Congress’s mandates to provide accurate information to consumers.
Neoliberal economists, not to mention well-funded conservative groups and lawmakers, have lectured policymakers for years about the virtues of interventions that create markets where well-informed consumers rationally choose products or services. This has led to the creation of requirements for notices and other disclosures to inform consumers, who supposedly will be best served by making their own informed choices, rather than restrictions on what is allowed in the marketplace. Now the federal courts are rendering these rules basically worthless by making it impossible for people to sue for violations of them. Companies can fail to make appropriate disclosures or even provide false or misleading information with little consequence. If courts reject the proposition that consumers are harmed by a marketplace with insufficient or even incorrect information, it makes little sense to write laws and regulations built around disclosures and notices. Policymakers and regulators have no choice but to outright ban harmful practices.
Finally, as the federal government becomes more and more stacked against working people, states need to prioritize making state law and courts into more robust democratic and equitable institutions. If federal courts are going to abdicate the role Congress gave them to curb corporate power, states need to aggressively fill the gap to provide avenues for citizens to band together to use the instruments of government to hold corporate power accountable and make our society work for everyone.
We have seen encouraging, creative efforts at the state level to combat the federal courts’ wayward views on standing, remedies, and other issues. But there is a tremendous amount of work to be done.
States are free to create their own substantive claims and remedies and civil procedure—to set their own rules for standing and provide venue for lawsuits against a company that has “taken full advantage of its opportunity to do business” in the state. States should pass new laws to regulate where the federal government has failed. This should include allowing federal claims to be brought as state claims to avoid standing and other issues in the federal courts and finding creative ways to avoid preemption.
Some states have developed “representational standing” for organizations to raise important consumer protection challenges in state court. In some instances, this has led big business to try to run back to federal court, where they believe corporations will fare better, requiring them to then face the standing regime they themselves have created. States must also reject ridiculous attempts by corporate defendants to bring federal standing standards into state court, which would only replicate the failings of the federal system.
States should create private rights of action and limit the worst abuses of mandatory arbitration and waiver provisions that unfairly or even unconscionably limit the ability of people to seek accountability from corporations. States should also invest in public enforcement. And remedies must be robust enough to enable individuals, organizations, and state government agencies to drive real change to harmful practices.
The time for incremental reform has passed. Until we radically reshape a legal system that has abandoned any pretense of neutrality, our government will continue to work only for the rich and powerful by shaping our society for their interests, rather than standing up for everyday Americans who desperately need someone to have their back.
Copyright © 2025 Frotman* and Lipton**
* Seth Frotman is a visiting senior fellow at Towards Justice and the Center for Consumer Law and Economic Justice at the University of California Berkeley School of Law. He is the former general counsel of the Consumer Financial Protection Bureau.
** Brad Lipton is Director of Corporate Power and Financial Regulation at the Roosevelt Institute. He is the former senior advisor to the general counsel of the Consumer Financial Protection Bureau.
[1]. See Political, Colins Dictionary https://www.collinsdictionary.com/us/dictionary/english/political [https://perma.cc/QP39-JL64] (“engaged in or taking sides in politics”).
