After momentous term, Supreme Court cements Federalist Society vision as law
In a concurring opinion he waited eight years to write, Justice Neil Gorsuch did not mince his words.
“Today,” he scribed, “the Court places a tombstone on Chevron no one can miss.”
Why We Wrote This
Overturning Roe v. Wade was just the first step for conservatives eager to undo what they regarded as past judicial mistakes. With its rulings this term, the Supreme Court has declared itself in charge of implementing that vision.
The opinion came in one of the landmark decisions of the recent U.S. Supreme Court term. Overturning Chevron deference, a 40-year-old administrative law doctrine that instructed courts to defer to federal agencies when interpreting vague statutes, was something of a personal victory for Justice Gorsuch.
That victory also represented the full realization of a high court that conservative lawyers and activists have been seeking for a generation.
Chevron has joined Roe v. Wade and affirmative action on the list of high-profile, decades-old precedents overturned by this high court. For conservative lawyers and activists, it’s the culmination of decades of work of transforming the federal judiciary to undo what they see as the legal errors of yesteryear.
With the federal government regulating everything from air and water to health care and worker safety, it remains to be seen the degree to which the current decisions will change Americans’ everyday lives. But legal experts across the political spectrum agree that the Supreme Court is now in the driver’s seat.
In a concurring opinion he waited eight years to write, Justice Neil Gorsuch did not mince his words.
“Today,” he scribed, “the Court places a tombstone on Chevron no one can miss.”
The opinion came in one of the landmark decisions of the recent U.S. Supreme Court term. Overturning Chevron deference, a 40-year-old administrative law doctrine instructing courts to defer to federal agencies when interpreting vague statutes, was something of a personal victory for Justice Gorsuch.
Why We Wrote This
Overturning Roe v. Wade was just the first step for conservatives eager to undo what they regarded as past judicial mistakes. With its rulings this term, the Supreme Court has declared itself in charge of implementing that vision.
That victory also represented the full realization of a high court that conservative lawyers and activists have been seeking for a generation.
In late 2016, as this decadeslong project was about to hit high gear with the election of President Donald Trump, the first shots against Chevron crackled across America’s judicial landscape. Then-Judge Gorsuch, serving on a Denver-based federal appeals court, fired them.
Chevron had “swallow[ed] huge amounts of core judicial and legislative power ... in a way that seems more than a little difficult to square with the Constitution of the framers’ design,” he wrote. “Maybe the time has come to face the behemoth.”
Eight months later, he was a Supreme Court justice. And now, in Loper Bright v. Raimondo, the behemoth has been vanquished. Chevron has joined Roe v. Wade and a pair of affirmative action decisions on the list of high-profile, decades-old precedents overturned by this high court. For conservative lawyers and activists, it’s the culmination of decades of work of transforming the federal judiciary to undo what they see as the legal errors of yesteryear.
“Was [Justice Gorsuch] ahead of his time? He was of his time,” says Cary Coglianese, a professor at the University of Pennsylvania Carey Law School and an expert on administrative law.
Chevron deference “became a symbolic target of what people thought was problematic about our governmental system,” he adds.
The Loper ruling “is not actually changing a whole lot, but [it’s] sending a powerful message to the public, to lower-court judges, and to future litigants that this is a new court, and they want to call the shots.”
With the federal government regulating everything from air and water to health care and worker safety, it remains to be seen the degree to which Loper will change Americans’ everyday lives. But legal experts across the political spectrum agree that the Supreme Court is now in the driver’s seat.
How a ho-hum ruling became a regulatory powerhouse
In contrast to today’s profound stakes, in 1984, the high court’s ruling in Chevron v. Natural Resources Defense Council didn’t attract much attention.
The U.S. Court of Appeals for the District of Columbia Circuit – which hears almost all cases involving federal agencies – had repeatedly struck down new federal regulations, including efforts to regulate air pollution under the Clean Air Act. With its Chevron decision, a unanimous Supreme Court held that courts could not overturn “reasonable” agency action without a solid basis in federal law.
“In the beginning, it was a warning [to] the D.C. Circuit,” says Michael McConnell, a professor at Stanford Law School who worked as a federal regulatory lawyer in the 1980s.
“As agencies became aware of the potential of Chevron deference, they became more adventurous in their statutory interpretations,” he adds, “and that is not a compliment.”
Industry groups grew particularly critical of the doctrine, which they saw as enabling overregulation. Conservative lawyers came to view it as empowering unelected and unaccountable agency leaders at the expense of the courts. Ironically, conservatives and industry groups had initially celebrated Chevron, viewing it as taking power from unelected federal judges.
The Federalist Society and the Trump White House
By the 2010s, the conservative legal movement had grown exponentially thanks to groups like The Federalist Society – and so had opposition to Chevron. With the Trump presidency, conservative lawyers like Don McGahn, who became Mr. Trump’s White House counsel, said they knew exactly how to take it down.
“There is a coherent plan here,” said Mr. McGahn at the Conservative Political Action Conference in 2018.
“This is different than judicial selection in past years,” he added. “The judicial selection and the deregulatory effort are really a flip side of the same coin.”
The Federalist Society took a leading role in that judicial selection process, vetting candidates for Mr. McGahn (himself a member of the group’s board of directors). The majority of Mr. Trump’s judicial appointees, including all three of his Supreme Court appointees, have ties to The Federalist Society or other conservative legal groups. Justices Clarence Thomas and Samuel Alito also are members.
Conservative lawyers and activists have also long been unified in opposition to precedents stemming from 1970s decisions on abortion rights and affirmative action.
While President Ronald Reagan denied in the 1980s that opposing Roe v. Wade was a litmus test for his nominees, Justices Antonin Scalia and Sandra Day O’Connor both voted to curb abortion access. His successor, President George H.W. Bush, nominated Justice Thomas, who had become a vocal critic of high-court decisions allowing race-conscious university admissions programs.
Twenty-five years later, Mr. Trump campaigned on a promise to appoint justices who would overturn Roe. He succeeded in appointing three, and in the past three years they have struck down Roe, affirmative action, and Chevron deference.
Is the Supreme Court now “the country’s administrative czar”?
The court’s Loper decision is just the latest in a series of rulings this term curbing the regulatory power of the executive branch.
In Securities and Exchange Commission v. Jarkesy, the court curbed the ability of agencies to pursue enforcement actions through in-house administrative tribunals. Also this past term, in Corner Post v. Board of Governors, the court expanded the statute of limitations for when federal regulations can be challenged under the Administrative Procedure Act. Two years ago, in West Virginia v. Environmental Protection Agency, the court strengthened the major questions doctrine, which bars agencies from regulating on “major questions” without clear approval from Congress.
All four decisions divided the court along ideological lines. And in all four, the dissenting justices issued dire warnings about the potential consequences.
In her dissent to the Loper ruling, Justice Elena Kagan criticized the majority for “in one fell swoop,” turning the Supreme Court “into the country’s administrative czar.” Justice Ketanji Brown Jackson, in a Corner Post dissent, wrote that the decision “is profoundly destabilizing – and also acutely unfair” in permitting challenges to settled regulations “long after the rest of the competitive marketplace has adapted itself to the regulatory environment.”
However, courts will still have to show some deference to agency decision-making, as they did before the Chevron ruling. Studies have shown that even before Chevron was overturned, agencies were losing legal challenges to regulatory actions more often. The Supreme Court itself had not enforced Chevron deference since 2016. The Biden administration appears to have scaled back on its expected pace of issuing proposed rules following the West Virginia v. EPA decision, according to a yet-to-be-published study by Professor Coglianese and Nabil Shaikh.
“The U.S. had a large and powerful administrative state before Chevron,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School. The Loper majority, he adds, “said very clearly past [regulations] shouldn’t be disturbed except in extreme situations.”
Indeed, the Loper decision held that courts will need “special justification” to overturn regulations already approved under the Chevron framework. But some legal scholars believe litigants will already be preparing legal arguments for why there is special justification to overturn decades-old regulations.
“Chevron at its core was a judicial efficiency tool, and it kept there being a mass run to the courthouse to overturn every little decision,” says Christine Bird, an associate professor of political science at Oklahoma State University who researches the conservative legal movement.
Now “there are going to be a flood of actions,” she adds. But because the Supreme Court now decides many fewer cases than it used to, it’s likely that the fate of most regulations “will be resolved at the lower levels of the federal judiciary, and the Supreme Court gets to pick” which of those decisions it wants to review.
This past term may have been a preview. After the overturning of Roe, lower courts have dealt with a range of abortion-related challenges. The Supreme Court dismissed challenges on procedural grounds in cases concerning emergency room abortions and the safety of a pill used in a majority of abortions.
“The conservative legal movement has been very clear about what they’re interested in,” Professor Bird adds.
Professor McConnell, who also served as a federal appeals court judge, counters that every judicial era “has its own preoccupations.”
The administrative law issues occupying the current high court’s attention “are responses to broader developments in the administrative state,” he says. “It’s in a sense a new project.”
With the three Trump appointees likely to serve for the next two or three decades, where that project goes from here is unclear. While the court did make challenging regulations easier, it also upheld the constitutionality of the U.S. Consumer Financial Protection Board in May. And it declined to hear a challenge to the constitutionality of the Occupational Health and Safety Administration, which oversees worker safety.
“People are looking at these cases from this term and putting them into the context of a court that ... is taking a very skeptical look at the administrative state, and are reasonably wondering, How far will this go?” says Professor Coglianese.
Taking a broader view, Professor McConnell argues, there is nothing abnormal about what the current Supreme Court is doing.
“Whenever there is a significant change in the composition of the court, the result is more repudiation of past precedent,” he says.
Editor's note: This story has been updated to correct the month in which the Supreme Court decided the U.S. Consumer Financial Protection Board case.
