The Supreme Court Takes on the Tort Tax

As the Supreme Court drew to a close, the public’s attention was understandably fixated on pressing and politically charged questions such as birthright citizenship, mail-in balloting, and transgenderism in sports. But a bit under the radar, the Supreme Court also issued a few rulings, such as Monsanto v. Durnell, that restore important limits on civil litigation. From rejecting attempts to create new private rights of action to enforcing federal limits on state law liability, these disparate rulings involved different statutes and industries. But together, the justices reinforced the all-important overriding principle that courts exist to apply the law—and nothing else.

That principle matters far beyond the courthouse, especially as the expansion of mass-tort litigation has exacerbated the affordability problems now confronting many American families.

A 2025 economic analysis estimated that excessive tort costs add approximately $2,437 to the average household’s annual expenses through higher prices alone. That is a staggering sum. Across the entire American economy, total tort costs make goods and services about 1.3% more expensive than they otherwise would be. Those increases are silently embedded in higher insurance premiums, medical costs, rent, transportation, and nearly everything consumers buy.

The sheer volume of modern mass litigation helps explain why. Consider that in recent years, multidistrict litigation has accounted for roughly 70% of pending federal civil cases. The consolidation of similar lawsuits may aid judicial economy, but it can also allow thousands of claims to accumulate before anyone determines whether an individual plaintiff used a relevant product, suffered an alleged injury, or can establish causation. And even though reports have found that many of these mass-tort claims lack legitimacy, their mere presence throughout the docket consumes judicial resources and drives up costs for everyone.

We should think of this as the hidden tort tax. It is never debated in Congress or itemized on a receipt, but families pay it every day as businesses pass along rising legal costs and divert resources away from hiring, investment, and product innovation.

Unfortunately, the problem is systemic. It is not confined to one type of claim or one litigation tactic. It often begins when a disputed legal or scientific theory is multiplied across thousands of cases, creating pressure that can exceed the strength of the underlying claims.

The ongoing litigation involving Roundup, Bayer’s mass-marketed weedkiller product, illustrates this dynamic.

More than 100,000 claims have been filed alleging that the product should have carried a cancer warning. Yet the Environmental Protection Agency approved the label without such a warning and concluded that glyphosate, a Roundup ingredient, is not likely to be carcinogenic to humans when used as directed.

In the Monsanto decision, the Supreme Court did not declare Roundup harmless or prevent every injured plaintiff from bringing a claim. But it did hold that state law could not impose liability on a manufacturer for failing to add a warning that the federally approved label did not contain. In short, the court said that plaintiffs cannot use state tort law to create an obligation that conflicts with federal requirements. Federal law, in short, is supreme.

That distinction matters because mass-tort litigation can bring enormous settlement pressure before courts fully resolve the underlying law or science. Bayer has proposed paying $7.25 billion to resolve tens of thousands of current and potential cases. At that scale, the size of the docket itself becomes a point of leverage.

The same pressure grows everywhere plaintiffs’ claims accumulate faster than they are screened. In multidistrict litigation involving the blood thinner Xarelto, approximately 4,000 lawsuits were dismissed for lacking factual support. Roughly 40% of the cases selected for trial preparation failed to survive basic factual scrutiny.

Many lacked evidence necessary to establish foundational elements such as product use, a qualifying injury, or a causal connection between the two. Yet each filing still enlarged the docket and strengthened the incentive to settle and resolve claims collectively, rather than examine each individually on its own merits.

And that is the central danger of inventory-driven mass-tort litigation. A factually or legally weak claim can still have financial value when it is added to thousands of others. The resulting burden also falls on legitimate plaintiffs, whose cases move more slowly and compete with improperly screened claims for limited settlement resources.

Similar incentives are now visible in a recently filed antitrust suit that accuses three major fire truck manufacturers of conspiring to restrict supply and inflate prices. The companies deny the allegations—which remain unproven—and higher prices alone do not establish an illegal agreement, especially for a specialized industry at a time when labor shortages and supply chain disruptions have been impacting the whole country. But contingency firms are nevertheless recruiting municipalities and fire departments, seeking nationwide classes of public purchasers, and pursuing treble damages that would triple any established overcharge. Yet again we see how the very structure of a mass claim can magnify pressure before allegations are tested, let alone proven.

The cases differ, but the economic consequences follow the same path. Billions reserved for Roundup settlements cannot be invested in research, facilities, or workers. The cost of processing thousands of unsupported Xarelto claims is absorbed by courts, and ultimately patients and consumers though higher drug prices. And when fire truck manufacturers face the expense and uncertainty of nationwide litigation, those costs can return to taxpayers through increased prices for the next generation of emergency equipment.

That is how the hidden tort tax spreads.

The solution is to ensure that litigation remains grounded in law, evidence, and reliable science. The sheer number of claims in a mass lawsuit can never substitute for legal, evidentiary, and scientific merit. Courts should require early-stage proof of product use, injury, and causation, rigorously screen expert testimony, and prevent unsupported claims from being accumulated solely to increase settlement leverage. Public officials should likewise scrutinize contingency-fee arrangements before committing taxpayers to sprawling litigation campaigns.

President Trump has rightly made affordability, domestic manufacturing, and economic growth central to his agenda. But deregulation and tax relief can only accomplish so much if abusive mass-tort litigation recreates many of the same burdens through the courtroom.

Josh Hammer is Newsweek senior editor-at-large, host of “The Josh Hammer Show,” a Shillman Fellow at the David Horowitz Freedom Center, and author of Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West (Radius Book Group). X: @josh_hammer.

The views expressed in this article are the writer’s own.