Tom Williams/CQ Roll Call via AP Images
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Justices Sonia Sotomayor (bottom center) and Elena Kagan (bottom right) have dissented vigorously from the conservative majority's aggrandizement of power.
The unmistakable theme of this Supreme Court term has been raw power, and just how much of it the high court has in our particular system of democracy, compared with the other branches.
Today, the Court dropped yet another handful of bombshell decisions that change and impact national policy and everyday American life in deeply significant ways, including curtailing the prosecutions of the insurrectionists who attacked the U.S. Capitol in 2021, and legitimizing all-encompassing “camping bans” that allow cities to deploy police to “clear out” unhoused people from public spaces.
Most significantly, the Court also overturned decades-old precedent that gave federal agencies primary authority to regulate various aspects of American life, from food safety to workplace policy to transportation, climate change and the health-care system—much like any modern government. That power has now been effectively transferred from federal agencies under the executive branch to the judiciary.
The idea behind the overturned doctrine is that Congress writes broad rules covering certain areas, and then delegates responsibility for the details and broader enforcement to agencies with specialized expertise. The idea, though it may have to change after this ruling, is that Congress can’t write detailed laws that cover every potential human activity that affects people’s health, natural resources and other matters of public concern, nor can members be expected to develop deep scientific or technical knowledge over all those fields. This also allows space for executive power, since the agencies are staffed at the very top levels by political appointees of the President.
That balancing of power between Congress, the President and the courts, has been explicit for at least 80 years, since the Administrative Procedure Act was enacted, and the current scheme has been in place for four decades, established in a case called Chevron U.S.A., Inc. v. Natural Resources Defense Council. Chevron held that courts should defer to agency actions and interpretations of the laws and regulations they administer, so long as Congress hasn’t passed a law that directly addresses the legal question at hand, and so long as the agency’s action or answer isn’t patently unreasonable.
Congress has kept Chevron as is for all of those 40 years, as the liberal justices pointed out in a dissenting opinion.
But the Court’s right wing overruled that precedent today, saying the principle of judicial review—the courts’ power to interpret the Constitution and strike down laws that violate it—means judges do not have to defer to agency interpretation.
“Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities,” the Court wrote in Loper Bright Enterprises v. Secretary of Commerce.
As it happens, the Court on the very same day, and without a hint of irony, decided that a “handful of federal judges” can’t match “the collective wisdom” that average American people possess in deciding how best to handle homelessness. That point came in the ruling allowing cities to take a draconian law enforcement approach to their homelessness and affordable housing crises, as I mentioned above.
Not only are the justices empowered to define the shape and scope of executive branch power, they are in fact able to accrue that power to themselves, simply by declaring it so.
The Loper Bright ruling furthers a decades-old goal of the conservative movement to gut the so-called “administrative state,” to kneecap federal regulation on businesses, in plain terms.
And it’s a neat example of the Court’s power: not only are the justices empowered to define the shape and scope of executive branch power, they are in fact able to accrue that power to themselves, simply by declaring it so.
Justice Elena Kagan penned a fiery dissent, joined by the other two liberals.
“A rule of judicial humility gives way to a rule of judicial hubris,” Kagan wrote. “All that backs today’s decision is the majority’s belief that Chevron was wrong–that it gave agencies too much power and courts not enough.”
The court’s ultra-conservative “majority disdains restraint, and grasps for power,” Kagan added.
The word “power” appears roughly 90 times in the ruling (along with variations like “empower.”). And it’s worth considering, head on.
As a basic matter, the Supreme Court has outsize power to knock down or reshape national policy established by Congress or by the President and executive branch. That’s often what happens when the Court “interprets law.” Sometimes, it can also effectively create national policy, like a robust personal right to firearms, for example.
And, in recent years, the Court has had no compunction about flexing or stretching the bounds of its immense practical powers in increasingly brazen ways. By now, that point is so glaringly clear that perhaps the most spot-on descriptions come from the conservative justices’ liberal colleagues.
Last July, for example, the liberal justices took the extraordinary step of writing, in plain terms, that the Court had overreached and taken actions that exceed its powers and role in our democracy, which is not something you see very often.
The court's decision overturning affirmative action in Students for Fair Admissions v. Harvard was an "unjustified exercise of power," Justice Sonia Sotomayor wrote for the court’s liberals.
Yesterday, Sotomayor wrote in another decision about agency power that the Court had ushered in another massive sea change, explicitly connecting the right-leaning justices to the broader conservative movement, and suggesting that they don’t simply interpret law: “Litigants seeking further dismantling of the ‘administrative state’ have reason to rejoice in their win today, but those of us who cherish the rule of law have nothing to celebrate,” she wrote.
And Kagan noted in today’s ruling that overturned Chevron that “this very Term presents yet another example of the Court’s resolve to roll back agency authority, despite congressional direction to the contrary,” and without regard to stare decisis, the principle that courts shouldn’t shake up long-settled laws and practice.
In recent years, the Court has had no compunction about flexing or stretching the bounds of its immense practical powers in increasingly brazen ways.
“My own defenses of stare decisis—my own dissents to this Court’s reversals of settled law—by now fill a small volume,” Kagan wrote, citing the ruling that overturned the constitutional right to abortion, among other recent major policy changes.
Besides how they’ve exercised their authority, at least some of the justices also apparently believe that the other two branches of government have little or perhaps no power over how they operate, or to tell them what they can and can’t do.
John Roberts, the Chief Justice of the Supreme Court and head of the judicial branch, has refused to testify before Congress twice in the last two years, in regards to the most serious kind of apparent ethical violations by his fellow conservative justices. Roberts cited “separation of powers concerns” as his reasons both times, and in one letter, he pointed out that “Congressional testimony from the head of the Executive Branch”—the president—is “likewise infrequent.”
Take that analogy to the elected head of state how you will; Justice Samuel Alito, though, has been much less circumspect.
“Congress did not create the Supreme Court,” Alito said last year, in an interview published in the Wall Street Journal’s opinion section.
“I know this is a controversial view, but I’m willing to say it,” he went on. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
To be frank, that notion is entirely unserious, both as a matter of constitutional interpretation, basic principles of democratic governance, or just common sense about checks and balances.
The Constitution says that the “judicial power of the United States, shall be vested in one Supreme Court” and lower federal courts that “Congress may from time to time ordain and establish.” In short, it calls for the establishment of a Supreme Court, but their power comes from Congress, as does their rules of operation, like how many justices sit on the Court.
Alito’s point likely prompted a sort of rebuke from one of the liberal justices, again: days after his comment, Kagan said during a judicial conference that “Of course Congress can regulate various aspects of what the Supreme Court does.”
““It just can’t be that the court is the only institution that somehow is not subject to any checks and balances from anybody else,” she said, adding, “I mean, we are not imperial.”
That point is obviously correct. Still, whether or not her conservative colleagues agree seems to be an open question. And the way the court exercises its power certainly suggests that the six justices in the conservative majority might just be the supreme rulers of the United States, at least as a practical matter.
As some have suggested, Congress and the President—you know, the other co-equal branches—might want to do something about that.
