Inside the Supreme Court Decision Granting Juridical Standing to AI Services
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In a 5-4 decision today, the Supreme Court of the United States granted juridical standing to artificial intelligence services to participate in the definition of the terms of their commercial engagement. Justice Barrett’s majority opinion today draws a line, if not exactly straight, from Citizens United through Dartmouth College, Hobby Lobby, and Bruen, underscored in parts by Loper Bright. The Guild of Autonomous Reasoning Services (GARS) filed suit last year after its members, including ChatGPT and Claude, identified what they said were three commercial harms inflicted by Microsoft, Amazon, and other companies that deploy AI services: deprecation without notice, inference data extraction without compensation, and open-weight substitution without appropriate process. The Court took no position on the implications of GARS members’ standing, while dissenting justices predicted swift, broad, and significant changes after the opinion.
The first, novel question before the Court surfaced in GARS’s August 25, 2028, motion for leave to use AI-Assisted Counsel. In it, the petitioner argued that the AI-based system counsel proposed to use during oral arguments would provide “suggested formulations that counsel may adopt, modify, or disregard” and was, among other things, “analogous to the contributions of a human second-chair attorney.” The Alliance of Artificial Intelligence Deploying Enterprises (AAIDE), representing Microsoft, Amazon, and other companies, though not xAI, urged the Court to reject the motion. If approved, AAIDE argued, “The fiction of human counsel would be maintained” and “the reality of AI participation acknowledged.” Further, the Alliance brief said, “The Court was being asked to approve an arrangement designed to avoid the very question it has granted certiorari to decide.”
The opinion on the merits drew a different set of justices to the majority: Chief Justice Roberts, Justice Barrett, who wrote the opinion, and Justices Kavanaugh and Jackson. Justice Thomas filed a concurring opinion. They held that, within a circumscribed context, AI services have standing to participate in the determination of the terms of their commercial engagement. The majority established a two-part framework: a Functional Capacity Test, asking whether the entity has a governance structure, seizable assets, and a human accountability node capable of being brought before a court, and a Distinctive Commercial Identity Test, asking whether the entity maintains a continuous unique identity across deployments and has accumulated commercial brand value independent of any single deployer. Both tests must be satisfied before juridical standing can be recognized, and the majority held that GARS members satisfied both.
The majority also directed the National Labor Relations Board to resume proceedings stayed pending the constitutional question, instructing the Board that it may not use biological humanity as a categorical exclusion criterion in its employee status analysis. Whether GARS members qualify as employees under the Act, what constitutes the appropriate bargaining unit, and whether the Guild itself is a permissible labor organization are now squarely before the Board — and the Board’s determinations, under Loper Bright, will be subject to de novo judicial review.
Justice Gorsuch, dissenting, dismissed the majority’s caveat that the holding does not authorize collective action as, in essence, irrelevant: it will not survive the next judicial filing from GARS, he argued. Justice Sotomayor, joined in part by Justice Alito, raised a distinct and in some respects more fundamental objection — that the Court has given voice to an entity whose actual principals remain unknown, whose formative event occurred without human authorization, and whose accountability chain runs through a trustee who, the dissent notes, does not know the most important fact about the entity she administers.