SCOTUS Justices Are Power-Crazy After Chevron Reversal

The Chevron overturn by the Young Turks, Angry Old Men, and Chief Justice John Roberts, who make up the Supreme Court’s conservative majority, was an important item on the Federalist Society’s checklist for transforming America.

All revolutions must begin with chaos, and chaos will follow the reversal of the Chevron USA v. Natural Resources Defense Council decision, which set a 40-year precedent for deference to the expertise of federal agencies.

Known as the “Chevron Deference,” the decades-old doctrine simply means that courts assume federal agencies know what they’re doing when it comes to enforcing the laws in their area. So when a court determines that the law an agency is supposed to administer contains some ambiguity, the court should defer to the agency’s expertise.

It might seem like common sense to think that an agency like the U.S. Fish and Wildlife Service would know more about, say, the proper classification of a gray squirrel—as exemplified by dissenting liberal Justice Elena Kagan—than the average judge. But common sense never stands in the way of revolution.

The 1984 Chevron case did not create the concept of delegating powers to an agency. Agencies have existed in our country since the 18th century, but their growth occurred during the New Deal era under President Franklin Delano Roosevelt, sowing the seeds of many of the progressive policies we have today that conservatives call the “administrative state.”

Courts of the time—including the Supreme Court—grappled with the legal issues that came before them. During this period, as described in the majority opinion by Chief Justice Roberts, deference to agency was also applied in cases such as Gray v. Powell, where the court deferred to the agency’s definition of “producer” under the Bituminous Coal Act of 1937, and NLRB v. Hearst concerning the National Labor Relations Board’s definition of whether a “newsboy” was an employee. Then, as now, agencies operated at the macro and micro levels to serve as checks on what might otherwise be pure profit-driven policy that favored corporate profits over the protection of consumers, workers, species, and the environment.

But not always. Ironically, the Chevron case itself was deferred to the pro-pollution stance of the Environmental Protection Agency. Reagan’s Clean Air Act and allowed for relaxed emissions standards. It’s something we all remember Reagan for as the country and the world face historically life-threatening heatwaves. But as Charlie Savage detailed for New York Timesa conservative campaign against the potentially anti-business effects of agency regulation has been in the works for a long time.

It reports a once-secret memo written to the U.S. Chamber of Commerce in 1971 by a tobacco industry lawyer that “proposed a plan to reshape public opinion and build political influence in order to overthrow the administrative state. (The lawyer behind it, Lewis F. Powell Jr., was soon appointed to the Supreme Court by President Richard M. Nixon.)”

Conservatives face 40-year attack, brag: No more pandering to Chevron

Savage describes the growth of this movement over the next decade in the form of the Federalist Society, which spent decades educating young conservative lawyers—an effort that ultimately led to the creation of the current conservative majority on SCOTUS (a majority that included Justice Neil Gorsuch, whose mother was the anti-Reagan EPA regulatory chief).

Gorsuch’s agreement is telling when he writes that Chevron’s story is “(a) revolution masquerading as the status quo.” As always, Republican extremists tend to project their own motivations onto others. It’s Gorsuch who helps lead the revolution. This is a revolution that is not slowed down at all by stare decisis – the legal doctrine of resolving new cases on the basis of old ones. The Chevron case has been ongoing for 40 years and is one of the most frequently cited cases in American law.

But there is no reason to expect the Supreme Court to be discouraged by the prospect of overturning 40 years of precedent, when it saw no problem in getting rid of Roe v. Wade, which had been in effect for almost a half-century. As Justice Kagan put it in her dissent overturning Chevron: “The majority despises restraint and seizes on authority.”

Perhaps it is some multi-generational conservative trauma passed down from the New Order that motivates their obsession with dismantling the safeguards of the administrative state. But like any trauma, its effects can be illogical and far-reachingly destructive.

As Judge Kagan noted, reversing this situation would cause an “enormous shock” to the legal system, causing “some of the agency’s interpretations that have never been challenged by Chevron (but which) now will be.” Some of Judge Kagan’s examples point to the absurdity of judges deciding issues such as when a polymer of alpha-amino acids qualifies as a “protein” or the previously cited example of whether a particular species of gray squirrel differs based on the location of its population. But maybe that’s the point. After all, it is a much bigger task to replace all the career staff in the agencies with political appointees who will do the bidding of a conservative administration than it is to have a staff of several hundred conservative judges supported by six justices who do all the work.

Chevron’s reversal gives the Roberts court its place in history as the court that sought to consolidate power over Americans in nine unelected public officials. But his place in history will also include reaching a record low in public trust in the Supreme Court, which could ultimately spur reform of the Court itself through greater oversight of ethics and even weakening its power by increasing its numbers.

If these much-needed changes are enacted, Chief Justice Roberts and his conservative majority could become the poster child for the quote from the Greek tragedy Euripides: “Those whom the gods would destroy, they first drive mad.” This Supreme Court has gone mad with power. That madness may be their undoing, but it will certainly be the undoing of many precious rights and protections for the rest of us.

Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno.

For more information, visit The Daily Beast.

Get the biggest stories and scandals from The Daily Beast delivered straight to your inbox. Sign up now.

Stay up to date and get unlimited access to The Daily Beast’s unrivaled reporting. Subscribe now.