Public trust in the U.S. Supreme Court is at an all-time low thanks to indefensible decisions that roll back our rights and continuous revelations about evermore egregious ethical violations. But the Court’s conservative justices remain undaunted and, as the new term begins, they are poised to further undermine the U.S. Constitution and alienate the people they serve.
One of the highest stakes cases this term isn’t about a specific issue like abortion or LGBTQ+ rights, but has the potential to dismantle many rights and protections that we take for granted. In the upcoming case Loper Bright Enterprises v. Raimondo, the Court will decide whether judges or agency experts are better positioned to decide crucial public policy questions.
Congress, the branch of government responsible for legislating, believes it should be the agency experts that should have this authority — and for several decades, the judicial branch has agreed. But now the Court’s six conservatives believe they know better, which is a disaster for a democracy as large and complicated as our own.
For decades, the Court has taken the approach of hearing these experts out and, when in doubt, deferring to their expertise. In a 1984 case called Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Court decided that if a law is silent or ambiguous on a matter, it must merely decide if the agency’s actions are “based on a permissible construction of the statute.” In other words, if the experts appear to be honoring the intent of the law, the Court must give them the benefit of the doubt. Thus was born the principle we now know as “Chevron deference.”
To understand how this works at the most basic level, consider nuclear energy. As the film Oppenheimer reminded us this summer, nuclear power is scientifically complex and incredibly dangerous. In 1954, Congress passed the Atomic Energy Act to regulate nuclear technologies. It outlined the major tenets and considerations, such as the need to provide reasonable assurance and adequate protection of public health. But then the law left it to the experts to determine how to arrive at these goals.
This example poses a simple question: When it comes to national questions about nuclear safety, who would you want making decisions about the necessary regulations?
Congress — and most of us — want the nuclear expert deciding what would best protect public health. We likewise want a State Department full of foreign affairs experts. We want a Department of Health & Human Services full of doctors and public health experts. We want an Environmental Protection Agency full of experts on air and water safety. Congress has passed laws to improve our quality of life in so many ways and determined that the best and brightest in the relevant fields should be guiding our path.
If this seems like common sense, it is. Why then are the Court’s conservatives arguing for a revolution in law that endangers standard operating procedure? Conservative lawmakers like Sen. Ted Cruz (R-Texas), who want the conservative justices to seize this power for themselves, claim that the issue is that Congress can’t just give a blank check to “unelected bureaucrats,” their slander for experts operating in ways that these, might I add, “unelected justices” oppose. But that’s not at all what’s happening.
Congress intentionally writes laws using language that is broad and general. They then leave it to the experts to fill in the gaps and substance because the experts know more than legislators do. Congress also recognizes that, on these technical and specialized topics, knowledge and practice change, so experts need flexibility to get the policy right. Taking Oppenheimer again, we know a lot more today about nuclear physics than we did then. By writing laws with broad language, Congress allows the experts to capture that learning and update regulations appropriately.
By Rakim Brooks, Democracy Docket contributor and president of Alliance for Justice.
This way of operating makes sense. After all, while we expect Supreme Court justices to have legal expertise, we can’t expect them to be experts on nuclear safety or any other complex issue they are asked to address. But this Court is constantly arrogating new powers to itself, and striking down Chevron is perhaps the greatest power play it could make. Going forward, courts would be at the center of every major policy debate, no matter how technical or obscure and no matter how far outside their expertise the essential questions might be.
But we shouldn’t be surprised with a Court this corrupt and ambitious. The conservative justices are willing to blatantly bend over backwards to interpret the facts of a case in a way that suits the political outcome they prefer. Consider how Justices Clarence Thomas and Samuel Alito engaged in selective readings of history to justify their rulings last year against gun safety regulations and access to abortion, respectively. Justice Neil Gorsuch similarly ignored clear facts in the praying coach case to rule against religious freedom protections. Time and time again, these justices have proven their willingness to distort the truth to advance their agenda.
This Court is hungry for power and openly flaunts its abuses of that power. Like nuclear energy, judicial power can be wielded for good, but it must be properly controlled lest it do devastating harm. It’s time to pass massive ethics reforms and other legislation to rein in the out-of-control justices before they seize even more power for themselves by overturning Chevron. They have already crowned themselves god-kings, and we shouldn’t wait until they add an extra jewel to their crown to act.
Rakim Brooks is a public interest appellate lawyer and the president of Alliance for Justice. As a contributor to Democracy Docket, Brooks writes about issues relating to our state and federal courts as well as reforms to our judicial systems.