An intergenerational grudge could lead the Court to undoing regulatory deference. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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Sometimes the big news from the Supreme Court comes not when the justices rule on a case, but when they decide to take it in the first place. That happened yesterday in a case with big implications for the role of government in American life.

And there’s a family drama at play, too. I write about that twist in my upcoming book, The Supermajority: How the Supreme Court Divided America. More about that, below.

First the news: the justices agreed to hear Loper Bright Enterprises v. Raimondo

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. It’s an arcane case about who pays to monitor whether fishing boats are following federal fishery plans. As I said, arcane. But the Court announced it would consider one topic and one topic only in hearing the appeal: Should it overturn Chevron v. Natural Resources Defense Council

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?

Those who care about the environment, worker safety, and fair markets should feel a chill. This right-wing supermajority has already shown that it is eager to heed the demand of financial interests that did so much to install its members on the Court: find a way to curb the power of regulatory agencies.

The 1984 ruling in Chevron held that when an expert regulatory agency interprets an ambiguous law reasonably, the courts will not second guess. It is among the most cited cases in federal courts. Over many decades, it has allowed government to function, while taking seriously notions of judicial restraint. After all, the engineers and economists and scientists of the Food and Drug Administration or the Environmental Protection Agency or the Securities and Exchange Commission . . . or for that matter, the fisheries agency! . . . must be capable of acting within the parameters set by Congress without an ideologically nosy judge jumping in. Chevron was a favorite of Justice Antonin Scalia. He thought it reflected the proper role for government — and for unelected justices and judges.

But major industries and the think tanks and lobby groups they back have chafed at this for years. They want to find a way to curb the regulatory state. In the early 20th century, the Supreme Court worked hard to block government from protecting workers, women, children, and public safety. Things came to a head in 1937, when President Franklin D. Roosevelt proposed to expand the Court and add new liberal justices. That was the huge “court packing” fight we hear about often today. Roosevelt lost the battle but won the war: the Court retreated, and stopped trying to stop government from acting.

Many libertarians and conservatives have said that was a big mistake. They pine for a “Constitution in exile.” For decades, they tried one theory after another to strike down the regulatory state. That regulations were a “taking” under the Fifth Amendment. That Congress could not “delegate” power to agencies. None of their bids really worked. And yet for a long time, deregulation advocates continued to pelt the Court with briefs urging the justices to undo Chevron.

A ruling last year began to hem in the regulators. The Court unveiled a new “major questions” doctrine in West Virginia v. EPA, the big climate change case from last June. The justices ruled that agencies could not act on a “major question” even if a congressionally enacted statute seems to authorize the agency’s action. What that means is vague. But we are already seeing lower court judges using the new doctrine to undo rules they just don’t like. “Major” may mean “if a judge with a lifetime appointment and the Federalist Society on speed-dial doesn’t like it.”

All of which brings us to the family drama. Justice Neil Gorsuch, the brainy and brusque conservative, has sought limits on regulation and has previously urged

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the Court to reconsider Chevron.

The original Chevron case came in an era when the EPA itself was consumed with scandal and drama. Its administrator was Anne Gorsuch, a polarizing political celebrity and a charismatic former Colorado state legislator who was the Reagan administration’s second highest ranking woman. The Rocky Mountain News wrote admiringly, “she could kick a bear to death with her bare feet.” In fact, an earlier version of the case was called NRDC v. Gorsuch. She was an ardent foe of strong environmental regulation, slashing the agency staff and filling key posts with polluters. Congress held her in contempt for refusing to hand over documents about a corruption-tinged toxic waste program. She resigned. In her memoir, she records the reaction of her teenage son Neil. “You raised me not to be a quitter. Why are you a quitter?” he demanded. “He was really upset,” she added.

Now Neil Gorsuch has lifetime tenure and an opportunity to finish what his mother started. In the Court’s first term with Gorsuch on the bench, the justices made major rulings on abortion and guns as well as the interests of the fossil fuel industry (in West Virginia v. EPA). Then in its second term, it focused on race, voting, and democracy. By taking Loper Bright, the Court has signaled it will be back to business — quite literally. In this case perhaps, and others for sure, we can expect the supermajority of conservative justices to push back against government environmental, safety, and other protections. Big money is at stake. So, perhaps, is family honor.





Lawsuit Aims to Clear Up Voting Confusion in Florida

Florida’s defective voter registration application doesn’t provide guidance to would-be voters with past convictions about their eligibility to vote. And guessing incorrectly can have disastrous consequences, as the state has begun prosecuting people with past convictions for making honest mistakes about whether they’re eligible. The Brennan Center has filed a lawsuit on behalf of civic engagement groups to demand that Florida fix its faulty form. Read more

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Securing the 2024 Election

The gravest foreign and domestic threats to the security and integrity of our elections have evolved over the past decade. In particular, the deliberate spread of falsehoods and rapid advances in artificial intelligence are eroding public trust in elections and ramping up intimidation and violence against election workers. A new Brennan Center report offers key recommendations that the federal government, state legislatures, and state and local election officials can implement to prepare for 2024. “The time is now to defend the election process against future threats. American democracy depends on it,” Derek Tisler and Lawrence Norden write. READ MORE

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DHS Can’t Shake Long-Standing Flaws

The Department of Homeland Security’s grants to prevent terrorism and targeted violence have long been criticized for putting innocent Americans and marginalized groups at risk while failing to benefit national security. Though the department claimed it revamped the program to focus on countering white supremacist violence and adopting a public health model, a Brennan Center analysis of grants awarded in 2020 and 2021 finds they suffer from the same fundamental flaws as their predecessors. “The Brennan Center has repeatedly called for DHS to abandon these ill-conceived violence prevention efforts, and nothing in the rebranded program changes this conclusion,” Spencer Reynolds, José Guillermo Gutiérrez, and Alia Shahzad write. READ MORE

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Why SCOTUS Needs Reform

Last week, Chief Justice John Roberts declined to testify at a Senate Judiciary Committee hearing about ethics and the Supreme Court. Instead, he sent a statement signed by his fellow justices reaffirming their ethics principles and practices — nice in theory, but nonbinding in practice. In light of the latest scandal involving Justice Clarence Thomas and his billionaire benefactor, it’s clear that a mere statement isn’t enough. As Mireya Navarro writes, “If the Supreme Court cannot produce its own code of ethics, Congress can and should require it.” READ MORE

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A Victory for Fair Maps in Alaska

Last month, Alaska’s supreme court published a landmark decision that makes clear that partisan gerrymandering violates the state’s constitution. It joins a growing number of state courts that have stepped up to provide recourse against discrimination in redistricting, filling a void left by federal courts that have placed gerrymandering beyond judicial review. It’s the latest development in an evolving legal landscape, and it remains to be seen whether state supreme courts in New Mexico and Utah will follow Alaska’s lead when ruling on upcoming partisan gerrymandering claims under their own constitutions. READ MORE

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. . . And a Troubling Loss in North Carolina

North Carolina’s high court, however, went in the opposite direction. In a brazen decision last week, the conservative-majority court reversed an anti-gerrymandering ruling issued only last year. The facts of the case haven’t changed, but the court’s ideological composition has. “With the state’s highest court making clear it will not intervene to police gerrymandering, North Carolina Republicans are expected to aggressively retool congressional and legislative maps to once again create massive and durable advantages for their party,” Michael Li writes. Read more

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Guaranteeing Liberty Through State Courts

State courts can choose to view the U.S. Supreme Court’s Dobbs decision as an opportunity to chart their own paths for safeguarding individual liberty rather than follow federal courts, which too often fall short, California Constitution Center experts David Carrillo and Brandon Stracener write for State Court Report. Though most state judges look to federal precedent when deciding state constitutional rights, the authors argue that state courts can and should reconsider this problematic approach and interpret their constitutions independently. “Looking solely to the federal high court is the opposite of James Madison’s insight that we best protect liberty by dividing power,” they write. READ MORE

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News

Ruby Edlin and Lawrence Norden on the Brennan Center’s survey of local election officials // ELECTIONLINE

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Caroline Fredrickson on the need for a binding code of ethics for the Supreme Court // US NEWS

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Sean Morales-Doyle on the Texas Legislature’s latest attempts to criminalize voting mistakes // HOUSTON CHRONICLE

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Wendy Weiser on abuses of power by state legislatures // WASHINGTON POST

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