Graphic featuring protesters behind the scales of justice, reading ''The Rush: Bolder Action Now: Fill Every Seat''
The Supreme Court last week heard oral arguments in Loper Bright [[link removed]] and Relentless [[link removed]] – a pair of administrative law cases with the potential to transform the way our federal government works. The two cases pose the same question: Should the Court overturn long-standing precedent, the Chevron doctrine, also known as Chevron deference?
Issued in 1984, the Court’s decision in Chevron is as integral to administrative law as football is to the NFL. The doctrine arising out of that ruling holds that courts should defer to reasonable agency interpretations of ambiguous statutes. Phrased another way, Chevron doctrine stands for the proposition that when Congress hasn’t specified otherwise courts should defer to agency experts when it comes to how agencies implement law.
What does that mean? Under Chevron , the FDA’s experts decide whether a medication is fit for public use, for example, not a judge. And instead of a judge deciding whether a nuclear reactor poses a threat to public health, the Nuclear Regulatory Commission makes the call. Rather than letting a judge decide whether a plane is safe for passengers, the Federal Aviation Administration is in charge.
During oral argument, members of the Court’s far-right majority signaled their willingness to overturn Chevron . Justice Neil Gorsuch, a longtime critic of deference, was particularly outspoken in his critiques— as was Justice Brett Kavanaugh. Meanwhile, Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, by contrast, emphasized the chaos that would result from overturning this pillar of administrative law.
By the Numbers
It's difficult to quantify the extent of the havoc that overturning Chevron would unleash on the judiciary and the executive branch—and not just with respect to future cases. Over 17,000 cases [[link removed]] have been decided under Chevron since 1984. To quote Slate’s Mark Joseph Stern [[link removed]] “all aspects of federal governance will be in peril, subject to the whims of unelected judges with zero expertise or accountability. ”
The bottom line: This opportunity for the conservative uber-majority to take a swing at Chevron has been in the works as long as Chevron ’s been law —40 years.
Need convincing? Check out the New York Times , which last week broke the news [[link removed]] that the lawyers representing the plaintiffs in Loper Bright/Relentless are funded by none other than libertarian billionaire Charles Koch, as part of a longstanding crusade against the Chevron Doctrine. As reported in ProPublica [[link removed]] , Koch has invested heavily in cultivating a friend at SCOTUS: Justice Clarence Thomas.
While alarmed at the trajectory of Loper Bright/Relentless , we at AFJ remain steadfast in our mission to repair and strengthen our courts and confirm fair-minded judges. Cases like these highlight just how critical our work is.
To date, there are 89 federal vacancies, 9 circuit court and 80 district court. 60 of these vacant seats do not yet have nominees. While an impressive 169 judges have been confirmed during the Biden administration, filling these vacancies must be a priority. Americans deserve fully staffed courts.
The Good News
Fortunately, last week was not all bad news. On Thursday, January 18, the Senate Judiciary Committee (“SJC”) voted 17 Article III nominees out of committee – ensuring these candidates timely proceed on the path to confirmation.
Among these 17 nominees are several history-making candidates, including Adeel Mangi [[link removed]] , who would be the first Muslim person to sit on a federal appellate court; Nicole Berner [[link removed]] , who would be the first openly LGBTQ+ judge to sit on the Fourth Circuit; and Judge Mustafa Kasubhai [[link removed]] , who would be the third Muslim person to sit on a federal district court. We applaud SJC Chairman Dick Durbin for his tireless efforts to fill this nation’s federal judicial vacancies.
What's Next
Our Membership & Outreach team is hard at work planning exciting events for 2024 – so watch this space for upcoming AFJ events.
ICYMI: Our most recent Holding Court [[link removed]] with Joel Anderson, host of Slate’s popular Slow Burn podcast [[link removed]] , covered the pod’s latest season, in which he charted Clarence Thomas’s journey from rural Georgia to the Supreme Court. Those of you interested in listening to Joel’s discussion with AFJ President Rakim Brooks can do so [[link removed]] here [[link removed]] [[link removed]] .
That’s it from us! Thank you as always for your support – we look forward to seeing all that we accomplish together in 2024.
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