(ThyBlackMan.com) Remember, not so long ago, when Republicans pretended to dislike “judicial activism”? Well, a couple of weeks ago, the Republican-led Supreme Court decided that judicial activism is precisely what this country needs. In a 6-3 decision that fell along predictable political lines, the Court overturned Chevron v. Natural Resources Defense Council. Their decision in Loper Bright Enterprises v. Raimondo enshrined and exalted judicial activism in our legal system.
Decided in 1984, Chevron established that courts should — in general — defer to policy decisions that are made by administrative agencies. Why? Said agencies are likely to have created their policies based on expert analysis. The idea is that someone who is well-trained in, say, environmental science is more qualified than is a judge in determining which air or water pollution policies make the most sense.
Unfortunately, a majority of the Supreme Court basically said, “Nah. Unelected, non-expert judges know better than unelected, expert bureaucrats.” Writing for the majority, Chief Justice John Roberts argued that amicus curae (i.e., “friend of the court”) briefs, as well as the opposing parties’ arguments, are sufficient to help judges correctly decide even the most technically complex cases.
According to SCOTUSblog, a website that tracks the Supreme Court, Chevron has been cited in court more than 18,000 times since its inception. Still, Roberts and his fellow conservatives decided that it was “fundamentally misguided.” Apparently, they believe that judicial fiat is preferable to empirically based policy decisions. Leaving no room for doubt, Justice Neil Gorsuch stated in his concurring opinion: “Today, the Court places a tombstone on Chevron…” This is highly consonant with the right wing’s gospel of discrediting, disrupting, and dismantling the “administrative state.”
To make matters worse, this Court’s conservatives — as they have on multiple occasions — once again demonstrated that stare decisis (i.e., judicial precedent) means nothing to them. In fact, Roberts addressed the issue directly, arguing that stare decisis does not provide a reason to uphold the Chevron deference, which he refers to as “unwise, misguided, and unworkable” — after 40 years of being wise, rational, and highly workable.
For their part, the three Democrats on the Court are concerned that the Loper decision will cause hundreds or even thousands of cases to be relitigated, potentially flooding the judiciary with attempts to overturn decades of prior decisions. Justice Elena Kagan, who wrote the dissent, stated that Loper “will cause a massive shock to the legal system.”
Using very strong language, Kagan asserts: “A four decades’ old rule of judicial humility gives way to judicial hubris… The majority turns itself into the country’s administrative czar, giving itself the power to govern.” Arguing that Congress did not give such power to the Supreme Court, she laments “this Court has now claimed (that power) for itself as well as other judges.”
Case Western Law School’s Jonathan Adler generally agrees with the Loper decision. Yet, even he suggests that it may be harder for the Executive Branch to react to major crises, such as another national financial emergency or another pandemic. He stated, “This decision will make it more difficult for future (presidential) administrations to change policy without going to Congress.” Of course, if Congress passes laws that are ambiguous, it can always go back and clarify them. Because, as we all know, Congress works efficiently, effectively, and quickly…
But wait! There’s more! On July 1 the Court decided in Corner Post vs. Federal Reserve that, as a practical matter, there is no statute of limitations regarding when a prior ruling on an administrative policy can be challenged. Formerly, the losing side had six years to file an appeal.
However, the Court found that the proverbial six-year clock does not start ticking when the verdict is rendered; rather, it starts during the point at which the injury actually starts taking place. This could literally be decades later. Justice Jackson referred to the Loper and Corner decisions as a “one-two punch” that “has the potential to devastate the functioning of the federal government.”
Former President Donald Trump appointed a total of 234 federal judges (including three to the Supreme Court). That’s no small number. Presumably, the vast majority of them are likely to hold conservative views regarding the administrative state.
President Joe Biden has appointed 200 judges; they’re likely to have a different view given Trump’s very narrow set of “qualifications” for judges (i.e., the merely need to be young and conservative). Should some of the challenges to administrative authority come before the judges who Biden appointed, the outcome might not be the opposite what Trump wants if he is elected this Fall. I am reminded of a Chinese proverb that says, “May you get everything you asked for.”
In general, this Court’s term was very good for big companies. Given that “corporations are people” (according to the Supreme Court), I can only assume that several of them are guzzling bear and smoking cigars in celebration.
Written by Larry Smith
