Abundance and the Supreme Court

A reflection on October Term 2025.

The Supreme Court Review has just published a new article of mine exploring how several cases from last term reflect themes associated with the abundance movement. It’s a good prelude to my book, Why We Can’t Have Nice Things, which will come out later this year.

The article’s chief example is Seven County Infrastructure Coalition v. Eagle County, where Justice Kavanaugh deplored the effects of the National Environmental Policy Act: “Delay upon delay, so much so that the process sometimes seems to “borde[r] on the Kafkaesque.” But three other cases, including FDA v. Wages & White Lion Investment (e-cigarettes), Trump v. CASA (nationwide injunctions), and Trump v. Wilcox (for-cause removal), also seem to fit:

Taken together, these cases afford the President greater managerial control over the administrative state and display a more deferential approach to judicial review of executive branch action than has been typical in recent years. That jibes with the abundance agenda’s interest in reducing procedural burdens and improving state capacity. For now, the Court’s embrace of abundance is tentative and selective. The cases probably say more about the Justices’ politics than they do about judicial principles. But there is something here to build on, if the Court wishes to build on it.

To be very clear, I don’t think for a moment that the justices have become advocates of the abundance agenda. Nor do I think the Supreme Court is—or ought to be—at the center of a reform movement whose energies should be directed at the state and local level, as David Schleicher and I have argued.

But I do think it’s worth noting when abundance-related themes pop up in places you might not expect. More to the point: the Court’s cases from last term offer an unusually good opportunity to reflect on what a “law of abundance” might be, especially when it comes to administrative law:

The core of “the administrative law of abundance” is a belief that America has wrongly elevated procedures and courts at the expense of politics and agencies. Understood that way, the law of abundance is not organized around any substantive policy commitments. It calls, instead, for more democratic churn. Proponents of the law of abundance wager—rightly, I think—that letting democracy rip would reduce artificial scarcity. Americans overwhelmingly want more housing, better infrastructure, and clean energy. But that’s a contingent fact about the world and could easily change. If it did, the law of abundance would have nothing to say about it.

The law of abundance is also about state capacity—roughly, the ability of the government to get stuff done. As Rick Pildes has rightly argued, “[p]olitical and legal theory, as well as debates about political reform and legal doctrine, give too little weight to the importance of effective government in the central values [that] democratic governments must aim to realize.” Without effective government, there’s no hope of achieving the democratic ambitions of the American public. And across too many institutions at too many levels, American government is not performing as it should.

The piece closes with a reflection on what a healthier and more democratic approach to administrative law might look like—and how that approach may have some affinity with Justice Barrett’s thinking:

She was the lone justice to call for deference in both Ohio v. EPA and Seven County. She also wrote Trump v. CASA and, anticipating the decision in White Lion, pushed in her Ohio dissent for a more forgiving harmlessness analysis. She has likewise signaled her discomfort with “universal vacatur” under the APA. Justice Barrett is not uniformly pro-deference: she joined the majority in overturning Chevron, for example, and has supported the strict application of the major questions doctrine. But administrative law in her hands appears to combine a hard look at an agency’s legal authority with a soft touch on arbitrariness review. That resonates with the approach sketched out by Jeff Pojanowski, her former colleague at Notre Dame, in Neoclassical Administrative Law.

You can find the piece here (gated, alas)!