[During a major hearing this week, the conservative justices made
clear they’re about to gut the federal government’s power to
regulate—and take that power for themselves.]
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WE ARE WITNESSING THE BIGGEST JUDICIAL POWER GRAB SINCE 1803  
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Elie Mystal
January 18, 2024
The Nation
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_ During a major hearing this week, the conservative justices made
clear they’re about to gut the federal government’s power to
regulate—and take that power for themselves. _

US Supreme Court Justices Neil Gorsuch, Brett Kavanaugh, and Amy
Coney Barrett., Jacquelyn Martin / AP Photo / Bloomberg via Getty
Images

 

The Supreme Court heard two consolidated cases yesterday that could
reshape the legal landscape and, with them, the country. The cases
take on Chevron deference—the idea that courts should defer to
executive agencies when applying regulations passed by Congress.
They’re the most important cases about democracy on the court’s
docket this year, and I say that knowing full well that the court is
also set to decide whether a raving, orange criminal can run again for
president, and whether former presidents are immune from prosecution
for their crimes in the first place.

That’s because what conservatives on the court are quietly trying to
do is pull off the biggest judicial power grab since 1803, when it
elevated itself to be the final arbiter of the Constitution
in _Marbury v. Madison_. They’re trying to place their unelected,
unaccountable policy preferences ahead of the laws made by the elected
members of Congress or rules instituted by the president. If
conservatives get their way, elections won’t really matter, because
courts will be able to limit the scope of congressional regulation and
the ability of presidents to enforce those regulations effectively.
And the dumbest justice
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all, alleged attempted rapist Brett Kavanaugh, basically said so
during oral arguments.

I’m contractually obligated to tell you that the cases were
technically about fees that fisheries are required to pay to federal
observers. But all the justices talked about was Chevron deference.
Only Justice Sonia Sotomayor even bothered to mention the fish, three
hours and 20 minutes into a three-and-a-half-hour hearing.

The term “Chevron deference” comes from a 1984 case, _Chevron v.
Natural Resources Defense Counsel_
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the Clean Air Act that required manufacturing plants to get permits
before increasing toxic emissions. The Environmental Protection Agency
made a rule, pursuant to the Clean Air Act, that allowed some of these
industrial plants to increase emissions in certain cases without a
permit, and environmental groups sued. The Supreme Court unanimously
ruled (albeit with three justices recusing themselves) that the EPA
had the authority to make the rule and that the courts should
“defer” to the judgment of executive agencies when acts of
Congress are ambiguous or plausibly allow the agencies to make
additional regulations.

There are a couple of important subplots to the initial case. First:
The Ronald Reagan–era EPA was _against_ stricter environmental
regulations; the reason environmentalists sued the agency was that it
wanted to make it easier for industrial plants to increase
emissions—and the court agreed with the agency. In fact, for most of
its history, Chevron deference was lauded by conservatives (including
Federalist Society svengali Antonin Scalia), who thought that
deferring to executive agencies put power back into the hands of
elected officials and took power away from “liberal”
“activist” judges who might otherwise do things like demand
additional environmental regulations. Conservatives have flip-flopped
in recent years, largely because it’s easier now for them to control
policymaking through the unelected courts than it is to keep control
of the executive branch and its agencies. Liberals, for their part,
have generally been in favor of Chevron deference this whole time,
because it places power with experts instead of with judges.

The second subplot is that the head of the EPA in 1984, the one who
was trying to make it easier for polluters, was Anne M. Gorsuch,
Justice Neil Gorsuch’s mom. Of course, as a Reagan appointee,
Anne’s goal was to destroy the EPA from the inside. Chevron
deference helped her do that in 1984. Neil, in contrast, has made it
his life’s work to destroy Chevron deference, but not because he’s
suddenly interested in preserving the planet and combating climate
change; he’s still carrying on the family business. Neil isn’t
focused on just one agency; he wants to take down the entire
administrative state—and getting rid of Chevron deference is part of
that ultimate project because, unlike his mother, most heads of
executive agencies want those agencies to succeed.

What Neil understands is that Chevron deference is the key to running
a modern administrative state. Congress is going to pass only so many
laws (even fewer in times of government gridlock). Those laws are
going to have ambiguity and gaps, because of both the political deals
that are made to get the laws passed and Congress’s general
incompetence. Chevron deference allows the executive agencies to fill
in those gaps. Without it, only the courts can do that—and in many
cases, those gaps won’t get filled at all. Without executive
agencies with robust powers, it will be easier for companies to
pollute the air and water, billionaires to cheat on their taxes, tech
bros to monopolize markets, and mass shooters to buy restricted guns
and ammunition.

That’s the world, and the power, Neil Gorsuch wants. The legality of
every new financial product, workplace safety standard, abortion pill
or contraceptive, will not be up to the elected representatives who
crafted the law or the experts who were appointed by the president to
implement it, but will come down to Gorsuch or what five Supreme Court
justices think the law should be. That’s not a democracy, that’s a
juristocracy, where our votes are suggestions until the judicial
machine tells us what laws we’re allowed to have.

Kavanaugh was the one who put that future on obvious display during
yesterday’s oral arguments. While questioning Solicitor General
Elizabeth Prelogar, Kavanaugh complained that the law changes
“wildly” every “four to eight years” depending on which party
wins the White House. He seemed very concerned that new presidents get
to carry out their policy initiatives through the executive agencies,
and argued that if Congress tried to get rid of Chevron deference
through legislation (which, I’ll note, Congress does not wish to do,
because getting rid of Chevron deference is too stupid even for a
Republican-controlled Congress), “the president would veto it.”

It fell to Justice Ketanji Brown Jackson to remind Kavanaugh that the
fact that the law changes based on who wins an election is not a
nefarious woke plot to confuse people who like beer but “a function
of democracy.”

Jackson also brought up what I think should be the dispositive point:
She said that getting rid of Chevron deference was “impractical and
chaotic.” It’s hard to emphasize this point enough. Without
Chevron deference, every single agency rule is likely to be challenged
in court by some disaffected party. And with no standard other than
what judges think the policy should be, we’re going to end up with
wildly different rulings about the same regulation, depending on which
lower court (and especially which Trump judge) hears the case. A
simple workplace safety rule from the Occupational Safety and Health
Administration is going to be interpreted differently by a court in
California than by a court in Alabama, and then we’re going to have
appeals. Instead of experts, we’re going to have judges deciding how
many arms can be cut off by industrial threshers before they’re
deemed “unsafe.”

And those are just the new cases. Prelogar and Justice Elena Kagan
brought up the thousands and thousands of cases (over 17,000,
according to briefs submitted to the court) that have been decided on
Chevron grounds over the past 40 years. Potentially _all of
them_ could be up for re-argument should the court overrule Chevron.
The conservative super lawyer Paul Clement, who was arguing against
Chevron deference, promised this wouldn’t happen, but his reasoning
was hypocritically thin. He said courts would still respect the
precedents that happened under Chevron, even as he was arguing out of
the other side of his mouth that the court should ignore the very
precedent set by Chevron. His argument reduces to: “The leopards we
unleash will only eat the _right_ faces.”

As is the tradition with this extremist court, arguments about
precedent and the practicality of rulings held no sway with the
conservative majority. Gorsuch, Kavanaugh and bought-justice Clarence
Thomas have long been concerned with how Chevron deference limits
their power. Chief Justice John Roberts and Justice Amy Coney Barrett
seemed desperate to buy Clement’s poor logic and argued that
overturning Chevron wouldn’t be that big of a deal.

And then there was Justice Sam Alito, who defended his flip-flopping
on the issue by saying that Chevron was necessary in the past when
judges were motivated by policy considerations, but is not necessary
now because judges like him no longer put their policy preferences
into the law. I’m not making that up. Alito, of all people, the man
who does nothing but make policy about abortion rights, voting rights,
and affirmative action based on his own personal grievances, said that
judges are no longer motivated by policy concerns.

I don’t know if Chevron will be overturned outright in an opinion
written by would-be Overlord Gorsuch, or if it will continue to exist
in name only in an opinion written by Roberts where he announces that
Chevron was never really that important anyway and judges ruling by
fiat is just the normal way of the world. But I do know that the
conservative justices are giddy about the power that they are about to
give themselves. The conservatives and Clement broke out
in _laughter_, multiple times, as they opined on how best to end the
administrative state. I was only able to listen to the live audio, but
if you told me that Gorsuch conducted the whole argument while sitting
on a curule seat and being fed peeled grapes by his clerks, I’d
believe you. He carried himself with the condescension and smugness of
a man who knows he’s untouchable.

The Supreme Court didn’t hold an oral argument yesterday. It held a
coronation. For themselves. They are about to crown themselves with
power nobody elected them to have.

_ELIE MYSTAL is The Nation’s justice correspondent and the host of
its legal podcast, Contempt of Court
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He is also an Alfred Knobler Fellow at the Type Media Center. His
first book is the New York Times bestseller Allow Me to Retort: A
Black Guy’s Guide to the Constitution,
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Press. Elie can be followed @ElieNYC [[link removed]]._

_Copyright c 2024 THE NATION. Reprinted with permission. May not be
reprinted without permission
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Distributed by PARS International Corp
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_Founded by abolitionists in 1865, The Nation has chronicled the
breadth and depth of political and cultural life, from the debut of
the telegraph to the rise of Twitter, serving as a critical,
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* Supreme Court
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* Chevron
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* regulation
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