SCOTUS judges are power mad after Chevron turnaround

The overturning of Chevron by the Young Turks, the Angry Old Men, and Chief Justice John Roberts, who make up the conservative majority on the Supreme Court, was a major item on the Federalist Society’s checklist for remaking America.

Every revolution must begin with chaos, and chaos will result from the reversal of the Chevron USA vs. Natural Resources Defense Council decision, which set a 40-year precedent for respecting the authority 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.”

The courts of the day—including the Supreme Court—were grappling with the legal issues that came before them. During this period, as described in Chief Justice Roberts’s majority opinion, deference to agency was also applied in cases such as Gray v. Powell, where the court referred to the definition of “producer” agency under the Bituminous Coal Act of 1937, and NLRB v .Hearst regarding the National Labor Relations Board’s definition of whether a “newsboy” is an employee. Then, as now, agencies operated at macro and micro levels to serve as checks on what might otherwise be pure profit-seeking policies that favor 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 Reagan Environmental Protection Agency on the Clean Air Act and allowed for the relaxation of emission standards. It is something we all remember Reagan for, as the country and the world face historically life-threatening heat waves. But as Charlie Savage has detailed for New York TimesThe conservative campaign against the potentially anti-business effects of agency regulation has been a long-standing work in progress.

He reports that in 1971, a tobacco industry lawyer wrote a secret memo to the U.S. Chamber of Commerce that “proposed a plan to change public opinion and build political influence in order to roll back the administrative state. (The lawyer behind it, Lewis F. Powell Jr., would soon be nominated to the Supreme Court by President Richard M. Nixon.)”

Conservatives pounced on 40-year-old target and bragged: No more respect for Chevron

Savage describes how the movement grew over the next decade and took the form of the Federalist Society, which educated young, conservative lawyers for decades – an effort that ultimately led to the current conservative majority at SCOTUS (the majority includes Justice Neil Gorsuch, whose mother She was the anti-regulatory head of the EPA during the Reagan administration.

Gorsuch’s agreement is telling when he writes that the Chevron story is “(a) revolution masquerading as the status quo.” As always, Republican extremists tend to project their own motivations onto others. It is Gorsuch who is helping to lead the revolution. It is a revolution that is not slowed at all by stare decisis — the jurisprudential doctrine of deciding new cases on the basis of old ones. Chevron has been going on for 40 years and is one of the most 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 kind of multi-generational conservative trauma passed down from the New Deal that motivates their obsession with dismantling the protections of the administrative state. But like any trauma, the 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 made, then Chief Justice Roberts and his conservative majority could become the poster child for the quote from the Greek tragedy Euripides: “Whom the gods would destroy, they first drive mad.” This Supreme Court is mad with power. That madness may be their undoing, but it is certainly 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.