This article was featured in the Daily Prospect newsletter. Sign up for it here. Last week, a federal district judge d enforcement of a New York state law that banned landlords from using a centralized algorithmic platform to set rents. That platform, run by software company RealPage, had been the subject of a three-year federal antitrust investigation, which found the firm had facilitated something akin to a pricing cartel among rental property owners. Using a combination of public and proprietary data from landlords, the company had created an AI-powered tool that allowed property owners to coordinate rent hikes, suppressing competition and maximizing profits.
While the Trump administration eventually settled the federal case, municipalities took notice and, starting with San Francisco in 2024, began outlawing the practice. Philadelphia, Berkeley, and Minneapolis followed suit, and late last year, New York took those regulatory measures a step further, becoming the first state to prohibit algorithmic rent-setting. RealPage sued the state soon after the law went into effect, arguing that the kind of algorithmic price-setting New York had banned represents free speech protected by the First Amendment. Judge Valerie Caproni of the Southern District of New York found that argument compelling enough to issue a preliminary injunction that for now prevents the state from policing violations of the core of the law. Despite the law focusing on algorithms that supercharge anti-competitive “coordinating” among rental companies, Caproni wrote that “there is nothing untoward about considering prices charged by competitors when deciding how to price one’s own product” and that RealPage’s First Amendment claims were urgent enough to warrant immediate relief.
Given that outlook, you might think that Caproni is a symptom of the Trumpian takeover of the federal courts. But that would be wrong: The judge was nominated by Barack Obama and confirmed by a Democratic Senate, despite objections from the caucus over her role overseeing sweeping domestic surveillance operations later ruled illegal, while serving as general counsel of the FBI.
Though the story of the corporate capture of America’s political institutions has lately fixated on the White House and Congress, cases like RealPage, where the federal courts have shielded corporations from accountability, have been reshaping the country for some time now. A decades-old legal movement shaped by conservative advocacy groups and corporations has made a concerted effort to turn the federal courts into a safe haven from regulators, lawmakers, and advocates, per a new report from the judicial reform group Demand Justice. Those efforts have paid dividends, especially in the last decade, as corporations sought to stymie Biden-era antitrust and worker protection regulation and enforcement and have capitalized on a friendly White House bent on tearing down federal agencies.
“It is not enough to elect a president and Congress committed to democracy, accountability, and equality,” the report states. “We must fix the courts to ensure they are no longer dedicated to obstructing progressive reforms designed to create shared prosperity for all.”
The report goes back to the authoring of the Powell Memo by future Supreme Court Justice Lewis Powell in 1971, which urged corporations to pay attention to political power and the courts, and continues through the work of the law and economics movement, which pays for lavish junkets for federal judges to indoctrinate them in business-friendly legal thinking. More recently, the behind-the-scenes financier of the conservative judicial movement Leonard Leo and the right-wing Federalist Society have assembled an extensive pipeline of judges guaranteed to protect the interests of corporations over the public.
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Much of the action on business issues in the courts has centered on the Fifth Circuit Court of Appeals in Louisiana, a frequent destination for “forum shopping” by corporations, which, under the arcane rules of the federal judiciary, often have significant leeway to choose the jurisdiction where they file a complaint. It was judges on the Fifth Circuit, regularly deemed the country’s most conservative federal court, who in back-to-back precedent-shattering opinions paved the way for the Supreme Court’s Trump v. Slaughter decision, which stripped away the independence of federal watchdog agencies tasked with regulating corporate conduct for nearly a century.
First came a scathing dissenting opinion by Judge Andrew Oldham, a Trump appointee and former legal adviser to Texas Gov. Greg Abbott, which suggested that the president had the unilateral power to fire at will any member of practically any independent agency, and that the constitutional basis for those agencies to exist at all was suspect. A year later, the Fifth Circuit seemed to have come around to Oldham’s view, ruling in a majority opinion authored by Don Willett, another Trump appointee, that the entire structure of the National Labor Relations Board (NLRB) was likely unconstitutional and that its leadership could be fired at will. Both opinions set the stage for the Slaughter opinion at the Supreme Court in June, which authorized the president to fire civil servants without cause and gut dozens of federal agencies, many of them empowered since the New Deal to police the sorts of corporate abuses that led to the Great Depression.
Fifth Circuit judges had attacked federal regulatory agencies before that from another angle. Back in 2022, Judge Edith Jones, a Reagan appointee, penned a concurring opinion, arguing that the Consumer Financial Protection Bureau (CFPB)—the agency created after the 2008 financial crisis to crack down on predatory lending, discrimination, and fraud—was unconstitutional because of its funding scheme, which draws on financing from the Federal Reserve, not Congress. The Supreme Court rejected that argument in a limited way, ruling that the funding for the CFPB had checked off all the boxes outlined by the Constitution for congressionally approved appropriations.
Oldham and Jones are specifically named in the report, a break from some criticisms of the judiciary which cite the bench’s overall pro-corporate drift. Other judges named include Reed O’Connor, a former adviser to Sen. John Cornyn (R-TX) and a reliable business ally who receives most of the cases in the Northern District of Texas, thanks to a quirk in how that court assigns judges.
Yet the work of deregulating the economy and coddling corporations has not been confined to the Fifth Circuit. Over the last decade, district courts in Texas and New York have made precedent-setting decisions nullifying overtime pay increases for millions of workers, blocking corporate transparency laws from taking effect, and greenlighting enormous merger deals.
Judges in the Eastern District of Texas, nearly a decade apart, struck down first an Obama-era rule, then a Biden-era one, both of which would have upped the threshold for exempting salaried workers from overtime pay modestly to keep pace with inflation. Last year, one of those Eastern District judges, an Obama appointee named Amos Mazzant, also took to attacking Congress’s authority to compel companies to report “beneficial ownership information” in an effort to crack down on money laundering, invalidating through a nationwide preliminary injunction the Corporate Transparency Act. The Supreme Court later reversed that ruling, but the Trump administration, apparently realizing that it had use for federal regulatory agencies after all, issued a rule effectively invalidating the legislation. And again in the Southern District of New York, Judge Victor Marrero (a Clinton appointee) managed to look past the concerns of 13 state attorneys general and the D.C. AG, when faced with the $26 billion proposed merger of telecom behemoths Sprint and T-Mobile. Approving the deal had predictable consequences, foreseen by the AGs: The company fired thousands of workers, closed about a quarter of its stores, and has since raised rates dramatically.
Judges Amit Mehta of the D.C. Circuit Court of Appeals (an Obama appointee) and Leonie Brinkema of the Eastern District of Virginia (a Clinton appointee) both get honorable mention citations in the report. Both of these judges ruled that Google was a monopoly in different facets of its business, but both of them declined to break the company up or do anything of consequence to deter its market power.
“Congress has the clear constitutional ability to essentially tear down this system of corporate servitude in the federal judiciary,” said Demand Justice’s president Josh Orton, who has been advocating for Democratic lawmakers, should they take back Congress, to ban forum shopping, pursue Supreme Court reform, and propose judicial nominees willing to side with consumers, workers, and regulators. “We need to build power back on the federal judiciary, and that means we need to hold Democratic senators accountable for the federal judges they nominate to the president.”