Stephanie Scarbrough/AP Photo
With the end of the 2022-2023 Supreme Court’s term last month, attention should shift to a case on next term’s docket through which the justices may vastly expand their power while also accelerating the continuing collapse of public confidence in the Court.
In Loper Bright Enterprises v. Raimondo, the Court may end the judiciary’s deference to expert, federal agencies—such as the Consumer Financial Protection Bureau, the Environmental Protection Agency, and the National Labor Relations Board—when such agencies must construe parts of laws that Congress left unclear.
By denying administrative agencies that authority, the justices would arrogate it to themselves—thereby expanding their power at the expense of the political branches of our government. The paradoxical result would be that even more divisive issues will be decided along partisan lines by unelected judges.
Loper concerns the Marine Fisheries Service, and a regulation requiring herring fisherman to help defray the cost of monitoring their catch to prevent overfishing, under the Fishery Conservation and Management Act.
But there are bigger fish that may be fried here. In ruling on Loper, the Court may overturn its 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, which held that when a statute “is silent or ambiguous” with respect to a question, “a court may not substitute its own construction … for a reasonable interpretation made by the … agency.”
Both Justices Gorsuch and Thomas argue that it is the duty of courts, not agencies, to “say what the law is.”
The Chevron decision, authored by Gerald Ford appointee John Paul Stevens, was unanimous. It was later praised by conservative icon Antonin Scalia as “canonical.”
But some among the current crop of Court conservatives don’t appear to share Scalia’s view. Justice Gorsuch, dissenting from the Court’s refusal to hear an earlier case, urged the Court to place “a tombstone no one can miss” over Chevron. Justice Thomas has raised “serious questions about … deferring to agency interpretations of federal statutes.”
Both Gorsuch and Thomas argue that it is the duty of courts, not agencies, to “say what the law is.” But even a first-year law student knows that the law is often unclear. What precisely did Congress outlaw when it made it unlawful for employers to “interfere” with employees’ right to form a union in the 1935 National Labor Relations Act?
In that statute, as in many others, Congress “did not undertake the impossible task of specifying in precise and unmistakable language each incident” that would violate the law, as the Court recognized in its 1945 decision in Republic Aviation Corp. v. NLRB. Rather, Congress intended that agencies like the NLRB further specify what “the law is” “in the light of the infinite combinations of events” that might occur in the future.
Simple observation reveals that when the law is unclear, the justices often divide along party lines, particularly when the issue is highly charged—LGBTQ+ rights, affirmative action, guns, abortion. The justices nevertheless profess, in Chief Justice Roberts’s words, to merely “call balls and strikes.” But it is that yawning gap between reality and rhetoric (together with recent ethical lapses) that has driven public confidence in the high court to a historic low. If the Court uses Loper as a vehicle to expand its power, precisely in those cases where the law is unclear, public confidence in the Court is likely to plunge even lower.
In contrast to judges, agencies properly make policy when Congress has not spoken clearly. While agencies may not be “directly accountable to the people,” Justice Stevens explained in Chevron, the president who appoints them “is, and it is entirely appropriate for this political branch of the Government to make … policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency.”
As a member of the NLRB during the Obama administration, I was not forced to feign certainty about “what the law is,” but could acknowledge when the law was not clear and be honest about the reasons for my decisions. As Justice Stevens explained, “an agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”
Justice Gorsuch suggests that only “neutral” judges should decide “what the law is,” but his avid desire to overturn Chevron rests on an overt and decidedly not neutral hostility to people who staff what he has called a “titanic administrative state.” Rather than call them public servants or public officials, he tellingly uses the pejorative term “bureaucrat.” And while the Supreme Court used to presume that government officials act in good faith, Justice Gorsuch presumes that they do not “aspire to fidelity to the statutes Congress has adopted,” but instead engage in “self-serving gambits.”
Overturning Chevron will vastly expand the power of the Court, as hundreds of decisions based on deference to agencies under innumerable federal laws are opened to question. Yet, as Justice Scalia recognized, “[o]ne of the major disadvantages of having the courts resolve ambiguities” in this era of congressional gridlock “is that they resolve them for ever and ever.” In contrast, under Chevron agencies have the “needed flexibility” to adapt the law to changing circumstances.
For example, the NLRB has recently been asked whether employers “interfere” with the right to organize by preventing employees from using work email to communicate about forming a union—a question Congress did not address because email did not exist in 1935 and the law has not been amended in decades. And, as the Supreme Court recognized in its 1975 NLRB v. J. Weingarten, Inc. decision, “[t]he responsibility to adapt the Act to changing patterns of industrial life is entrusted [by Congress] to the Board.”
If the Court expands its power into areas where it formerly deferred to agencies—labor relations, environmental protection, drug safety—it will resolve even more heated public controversies not only “for ever,” but along party lines. No matter how vociferously the justices profess that they are mere umpires, the public will not be fooled.
The justices may wear robes unlike lowly “bureaucrats,” but under Chevron public servants can honestly acknowledge when it is not clear “what the law is” and they can be transparent in explaining what it should be. That is good government, and a dose of it, along with some humility, might be good for the Court’s public stature.
