The Supreme Court Cooked Up Another Phony Case to Tear Down Major Precedent

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The Supreme Court heard oral arguments on Wednesday in a pair of cases designed to hobble federal agencies that interpret and enforce the law, a step that will seize significant power from the executive branch. A majority of the justices appeared eager to overturn a doctrine called Chevron deference, which requires courts to defer to an agency’s reasonable interpretation of an ambiguous law. This development is high up on the wish list of Republican megadonors and activists, who have spent huge sums of money on the campaign to kill Chevron.

On Saturday’s Slate Plus segment of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the Supreme Court’s aggressive, arguably unlawful efforts to transform these cases into a weapon against the administrative state—even though they challenge a program that no longer exists. Their conversation has been edited for length and clarity.

Dahlia Lithwick: I want to turn to the demise of Chevron in Loper Bright, which the court heard this week. Anybody who thought maybe the court was backing off the big, wacky moves from two terms ago and that it would go lightly on Chevron deference was probably unpleasantly surprised this week.

But before we get to the question that the court agreed to hear, I wanted to just tee this up by asking: Is there a live case or controversy at issue with the good fishermen of Loper Bright?

Mark Joseph Stern: Thank you for asking that question—the answer is no! These cases are about a federal law that requires observers to join herring fishing vessels to ensure that they’re complying with overfishing rules. In 2020, the Trump administration directed the fishermen and their companies to help cover the costs of bringing monitors on their boats. The fishermen sued and argued that the statute doesn’t explicitly authorize the government to make industry cover compliance costs. They said: We want our money back. We don’t want to have to keep paying for these monitors.

And the federal government agreed to do all of that! The federal government shut down this cost-sharing program. The federal government repaid all the money that the fishermen paid observers. It said: We are making you whole again. We are giving you all of your cash back.

Everybody should have been happy. But they weren’t. Why? Because by that point, conservative legal activists like Paul Clement—who argued Loper Bright—had seized on these disputes as a vehicle to try to overturn Chevron deference. The entire conservative legal movement lined up to push this case onto SCOTUS’ doorstep to kill off Chevron. And so even though there is no more live case or controversy at all, and zero chance of this cost-sharing program ever restarting, this is still somehow an active Supreme Court case that will get a decision on the merits.

I also wanted to give you a chance to amplify what Prof. Ben Johnson talked about on the show last week, which is that, in addition to everything you just described, the court picked the issue it was going to hear in this case.

So the herring guys lost at the courts below, and when they appealed to the Supreme Court, their first question presented was: Does this statute allow the federal government to pass on these compliance costs to fishermen or does it not? And this is really just a classic question of statutory interpretation. The Supreme Court could have easily just said: The statute isn’t ambiguous; there’s no authority to pass on costs; so the program is unlawful. Fishermen win, government loses. The court didn’t even need to get into Chevron.

But instead, when granting this case, the Supreme Court cut out that first question presented entirely and focused instead on the second question, which was: Should this court overrule Chevron? And that question isn’t about the fish at all! I think Ben Johnson has persuasively explained that what the court did here is just not lawful. Congress has the constitutional authority over the court’s jurisdiction, and it has never allowed courts to shear off part of the question presented in a case so that it can focus on its own agenda. Congress has only allowed the court to hear “the whole case and every question presented in it,” as Chief Justice William Howard Taft put it. And that hasn’t changed.

I think it is really ugly when the court is so hungry—so desperate—to reach out and grasp at a question that’s not properly before it, that it will transform a case into something it’s not. Here, I think this tactic arguably denied the fishermen’s best chance to win. Because I think they would surely win, maybe unanimously, if the court had granted that first question. But it didn’t.

It’s probably useful to point out that whenever the court gets itself into this situation where the only thing left to debate is their feelings, you have a very, very long oral argument about their feelings. This time it was their feelings about Chevron, about federal agencies and the federal government.

So here we are with the court poised to overrule Chevron, something that the fishermen didn’t even clearly want, because five or six conservative justices wanted it, and whatever they want, that’s what happens.