The Supreme Court Is About to Seize Way More Power From Democratic Presidents
This is part of Opening Arguments, Slate’s coverage of the start of the latest Supreme Court term. We’re working to change the way the media covers the Supreme Court. Support our work when you join Slate Plus.
On Wednesday, the Supreme Court’s conservative supermajority signaled its intent to overturn four decades of precedent and award itself even greater authority to strike down policies that govern every conceivable aspect of life in the United States. This revolution has been years in the making, the result of a lavishly funded campaign to transform the courts into a weapon against any regulation you can think of. The environment, the economy, health care, civil rights, education: All aspects of federal governance will be in peril, subject to the whims of unelected judges with zero expertise or accountability and a distinct bias toward deregulation. Throughout the morning, SCOTUS sounded hostile to the very notion that elections have consequences—at least when a majority of justices dislike those consequences. And the court’s right flank evinced little concern about tossing 40 years of stable law, encompassing more than 17,000 federal court decisions, in favor of the Federalist Society’s preferred regime. It appears ready, in Justice Elena Kagan’s words, to “blow up one doctrine of humility, blow up another doctrine of humility, and then expect anybody to think that the courts are acting like courts.”
Wednesday’s arguments in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo target a federal regulation that prevents overfishing—though their details are largely irrelevant in light of the court’s grand, precedent-shredding ambitions. In 2020, the National Marine Fisheries Service compelled the fishing industry to help cover the cost of federal observers who monitor for overfishing. The fishers sued, drawing the government into a battle over the meaning of an overfishing statute that each side read differently.
For decades, the Supreme Court has instructed judges to use a tool called Chevron deference when faced with such ambiguities. The doctrine is rooted in a 1984 decision, Chevron v. NRDC, which involved an EPA policy that loosened restrictions on air pollution. (This policy was enacted by Justice Neil Gorsuch’s mother, EPA administrator Anne Gorsuch.) Environmental groups filed suit, but SCOTUS unanimously sided with the EPA’s approach. The court explained that agencies are staffed by experts with far more knowledge in their specific area than judges. These agencies are accountable to the president, who is in turn accountable to the citizenry. The court thus held that “it is entirely appropriate” for agencies to make the policy choices inherent in interpreting ambiguous statutes. (This notion was already deeply entrenched in statutes and precedents going back to the 1940s.)
At the time, Chevron drew staunch support from conservative judges like Antonin Scalia, who delivered a famous paean to the doctrine on the grounds that it “accurately reflects the reality of government.” This position aligned neatly with the Reagan administration’s ongoing campaign of deregulation, which faced resistance from left-leaning courts. In the 1980s, Chevron deference forced judges to uphold Ronald Reagan’s deregulatory measures, making it a pet cause of the conservative legal movement.
During Barack Obama’s presidency, though, courts increasingly relied on Chevron to uphold a slew of new, progressive regulations. Predictably, the conservative legal movement and its industry backers abhorred this development. So right-leaning judges pulled an about-face, effectively declaring war on Chevron. In this era, the doctrine helped keep in place new regulations—which the conservative legal movement abhorred. The Federalist Society, abetted by dark money groups linked to the Kochs, launched a crusade to turn Republican-appointed judges against Chevron. They rebranded the decision as an abdication of judicial duty that smothers the free market economy with illegitimate bureaucrat diktats. The gambit worked; even Justice Clarence Thomas, who once sang from the Chevron hymnal, turned against the precedent after he was befriended by its billionaire foes. It was no surprise, then, when the Supreme Court seized upon the herring cases as a vehicle to overturn Chevron—despite the fact that it had to exceed its own authority in the process, dropping the narrower question of statutory interpretation to take dead aim at precedent.
The three liberal justices, led by Kagan, mounted an impressive defense of Chevron in the face of their colleagues’ open hostility. At its core, Kagan explained, the doctrine is about respecting democratic choices. Congress (whom the people elect) passes laws that grant the president (whom the people elect) broad discretion to make certain policy choices by assigning key decisions to executive agencies; federal judges (whom the people do not elect) must defer to these decisions so long as the accountable officials interpret the law reasonably. Some choices are highly technical and rely on the agency’s specialized expertise. Others are contentious, allowing the agency to take sides in a public debate.
With Chevron, each new administration provides its own answer to these questions. If the people don’t like the answers, as Justice Ketanji Brown Jackson noted, they can vote for a new president. Without Chevron, each administration is handcuffed to the federal judiciary’s answer, replacing a “democratic structure” with “judicial policymaking.” Jackson didn’t say this next part, but everyone knows it: Because SCOTUS is relentlessly hostile to the administrative state, this system stacks the deck in favor of deregulation. Which—let’s be honest—means boosting Republican presidents and hobbling Democratic ones.
And yet, throughout Wednesday’s arguments, the conservative justices condemned Chevron as some kind of anti-accountability chaos agent that sabotages good government. Justice Brett Kavanaugh, who dissed Chevron during his audition for SCOTUS, assailed the decision’s democratic traits as a bug, not a feature. “The reality of how this works,” Kavanaugh said, “is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in—whether it’s communications law or securities law, competition law or environmental law, it goes from pillar to post.” New administrations change policy, Kavanaugh continued, “because they have disagreements with the policy of the prior administration.”
But why is that a bad thing? Solicitor General Elizabeth Prelogar, who did a stellar (if futile) job defending Chevron, reminded Kavanaugh: “There’s nothing inherently problematic or incompatible with our system of government to recognize that agencies can carry out” new policies where Congress gave them flexibility. Gorsuch, archenemy of the administrative state, sounded aghast at this arrangement: The justice engaged Prelogar in lengthy sparring matches, trashing the purported “fiction” that Congress delegates policy questions to agencies. He claimed that Chevron “has this disparate impact on different classes of persons,” harming everyday people by putting a thumb on the scale of government and somehow stopping citizens from vindicating their rights in court.
The remaining conservative justices were less dogmatic but made little effort to conceal their distaste for Chevron. Chief Justice John Roberts and Justice Amy Coney Barrett played it straight at first, asking real questions that hinted at an understanding of the mess that’ll flow from Chevron’s demise. But by the end of arguments, both were hounding Prelogar with telltale complaints about the ostensibly arbitrary and power-drunk executive branch crushing the rule of law. Justices Clarence Thomas and Samuel Alito, who have gone on the record against Chevron, were only a bit subtler than Gorsuch and Kavanaugh. The writing’s on the wall of the marble palace, despite the liberals’ fierce fight.
Here’s the bottom line: Without Chevron deference, it’ll be open season on each and every regulation, with underinformed courts playing pretend scientist, economist, and policymaker all at once. Securities fraud, banking secrecy, mercury pollution, asylum applications, health care funding, plus all manner of civil rights laws: They are ultravulnerable to judicial attack in Chevron’s absence. That’s why the medical establishment has lined up in support of Chevron, explaining that its demise would mark a “tremendous disruption” for patients and providers; just rinse and repeat for every other area of law to see the convulsive disruptions on the horizon.
“Judges should know what they don’t know,” Kagan protested on Wednesday, and leave these questions up to the people who do know. This Supreme Court, however, cannot conceive of the possibility that it is ill-equipped to decide every major policy question of the day. And this hubris is fueling a reckless race to snatch ever more power away from what remains of our democracy.
