The judicial war on the administrative state

It cannot be overstated how awful the impact of Loper Bright is going to be:

Since 1984, federal courts have applied Chevron in about 18,000 decisions in every conceivable area of the law: energy policy, education, food and drug safety, labor, the environment, consumer protection, finance, health care, housing, law enforcement—the list is pretty much endless. It has become the background principle against which Congress enacts all legislation. That all ends now. Chief Justice John Roberts’ opinion in Loper Bright declared that Chevron is unmoored to any law, “fundamentally misguided” and “unworkable,” creating an “eternal fog of uncertainty.” He dismissed it as “a judicial invention that required judges to disregard their statutory duties.” From here on out, courts must apply their “independent judgment” rather than deferring to federal agencies when Congress’ handiwork is ambiguous. And yet Roberts also tried to forestall a flood of challenges to past rulings rooted in Chevron, adding that courts require “special justification” to overrule these thousands and thousands of decisions. It would require immense naivety to believe that hard-right lower courts will abide by this passing suggestion.

Justice Elena Kagan’s dissent, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, is a masterwork of alarm and despair. “A rule of judicial humility,” she wrote, “gives way to a rule of judicial hubris.” The justice pulled no punches, bemoaning the majority’s reckless arrogance with outrage and contempt. “In one fell swoop,” the justice explained, “the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”

[…]

This “overruling-through-enfeeblement technique,” the justice wrote, “mocked stare decisis.”
A brilliant dissent, of course, is still a dissent: a largely futile cry of sorrow and anger that reflects the liberal bloc’s near-total loss of influence at this Supreme Court. Even Kagan’s most biting prose cannot stop what will happen next. The majority has shot a missile at the agencies that run our government, from the Department of Commerce and the EPA to the Department of Labor, the Food and Drug Administration, the Consumer Financial Protection Bureau, and every other bureau that protects Americans from harm every day. Rather than strike down one specific law, the conservative supermajority has hobbled the functioning of hundreds of agencies all at once. The decision will have a wildly outsized impact on Democratic presidents, who typically seek to beef up regulations, while favoring Republican presidents who enter office with a deregulatory agenda. And it leaves Congress in the lurch, denying lawmakers the ability to write laws the way they have for more than a century: empowering agencies to tackle threats to the general welfare through broad legislation that lets experts fill in the gaps.

Take a step back and consider how radically—and underhandedly—this Supreme Court is reshaping modern governance. By killing Chevron just one day after undermining agencies’ enforcement actions, the conservative supermajority is kneecapping the administrative state. It shares that goal with Steve Bannon, Donald Trump, and the far-right activists behind Project 2025. The Supreme Court is imposing a MAGA vision of the law on America, giving unelected judges near-unfathomable power to override the policy choices of the democratic branches. Through rulings dressed up in legalese, it strips power from the citizens and their elected representatives, establishing a monarchical judiciary with no known limits on its own authority. Anyone who cares about government of the people, by the people, for the people should share Kagan’s horror at what this court has wrought and what comes next.

The perennial Big Lie running through Roberts’s opinion is the idea that when the federal judiciary issues rulings about statutory ambiguities in politically salient cases that it is using some specific expertise available only to judges, rather than using statutory ambiguity as a vehicle to substitute their own policy preferences for those of the more accountable branches. This is bad enough in the abstract, but far worse when the federal appellate courts are dominated by a party that has managed to win the popular vote once since 1988.