The decision in Roper Bright Enterprises v. Raimondo, which overturned the Chevron v. Natural Resources Defense Council decision 40 years ago, is unlikely to impact American life as vividly and immediately as the decision that overturned Roe v. Wade in 2022.
But like Dobbs v. Jackson Women's Health Organization, the Roper-Bright case has the potential to fundamentally change important aspects of the health, safety, and well-being of most Americans. This is especially true when considered in conjunction with other major agency power cases that the Court has handed down recently, and indeed in the last few days, stripping agencies of their authority and transferring that authority directly to federal courts.
This week, the Supreme Court struck down a key mechanism the Securities and Exchange Commission uses to enforce securities laws, blocking a key Environmental Protection Agency emissions standard based on, in the words of Justice Amy Coney Barrett’s dissenting opinion, “an underdeveloped theory that is substantially unlikely to hold up.”
The Chevron deference doctrine emerged from the Chevron decision in 1984. In essence, Chevron deference allowed government agencies to use their expertise to determine how to implement laws passed by Congress (laws intended to keep our air and water clean, our medicines safe and effective, and the securities markets free from fraud and deception).
The Supreme Court decided that it would be the final arbiter of the meaning of all laws passed by Congress, rather than a body staffed by individuals with deep expertise and accountable to presidential appointments.
What does it mean to require government agencies to take the “best” or “appropriate” or “feasible” steps to reduce air or water pollution or to keep workplaces safe? Chevron had instructed courts to follow the agencies' expertise in these matters and provide reasonable answers, but now the courts will decide for themselves.
The Attorney General will do so with a stiff, formalistic, and context-free approach that interprets statutory text based on dictionaries, common law, and Latin phrases rather than decades of experience administering the specific laws passed by Congress, but that approach is not based on the on-the-ground realities of the problems the statutes Congress is trying to address.
One error in the ruling this week illustrated the cost of a lack of court expertise. The majority opinion released Thursday in a case involving the Environmental Protection Agency (Ohio v. EPA) used the term “nitrous oxide,” commonly known as laughing gas, five times instead of the “nitrogen oxide” compound at issue. The error was quickly corrected, but it's a mistake no agency official tasked with regulating the compound would make. And in many ways, that's the crux of Chevron's argument.
In a world without Chevron, courts would rely not on expertise but on their favorite tools and evidence in amicus briefs filed by ideological sympathizers. This is no exaggeration. Earlier this month, the court relied on six charts and GIFs from a Firearms Policy Coalition brief to declare that bump stocks, which functionally transform a semi-automatic rifle into a machine gun, cannot be banned by the Bureau of Alcohol, Tobacco, Firearms and Explosives under laws banning machine guns.
Despite their vastly different subject matters, Loper Bright and Dobbs have much in common: both are born out of the same ideological project of conservative legal reform, both reflect the same arrogance, recklessness, and regressive view of constitutional law, and both overturn precedent and shift the law in undemocratic directions while claiming a false democratic reputation.
The decisions that allowed this mayhem showed flagrant contempt for previous Supreme Court decisions. The Dobbs Court's contempt for the framers of Roe v. Wade was clear: it described Roe as an “abuse of judicial power,” said it was “flawed in historical analysis,” and said it was “horribly wrong from the start.”
Similarly, in Roper Bright, Chief Justice John Roberts argued that the 1984 unanimous Chevron decision was “seriously erroneous,” that it “upended the statutory system of judicial review of agency actions” and that it was always “unworkable.” The ruling further argued that the Court's modification of the original Chevron decision “turned the original two-step into a dizzying breakdance routine.”
Dobbs and Roper Bright also unite in their defensive assertion that democracy demands the results they reach. By overturning Roe, the Court explained, it had simply “returned the issue of abortion to the people's elected representatives.” Yet the Court, they argued, returned the issue to the democratic process at the very moment that it itself endorsed a variety of anti-democratic practices. And Dobbs's published method for identifying constitutional rights – one that closely follows “history and tradition” – links today's rights to a past in which many Americans were barred from participating in the making of the law.
Loper Bright is similarly anti-democratic, but it claims democratic legitimacy. Its core premise is judicial supremacy; in the Court's words, “agencies have no special power to resolve statutory ambiguities. Courts do.” But the Court also suggested that overruling Chevron would honor Congress as a democratically responsible policymaker. The Court's role under both the Constitution and the Administrative Procedure Act of 1946 is to interpret statutes independently, so that it can “effect the will of Congress.”
This reasoning echoes Justice Neil Gorsuch's ruling in an earlier case that struck down Occupational Safety and Health Administration COVID-19-era testing or vaccination mandates for large companies. Justice Gorsuch invoked democracy more explicitly in that case, explaining that the court was simply ensuring that “the power of the national government to make the laws governing us is vested in the people's elected representatives, as set forth in Article I of the Constitution.” Courts act to “prevent 'government by bureaucrats from substituting government by the people,'” Justice Gorsuch argued.
As is clear from this quote, the Court is arguing that it is undemocratic for government agencies to lead the interpretation of laws passed by Congress, and that it is somehow democratic for the courts to do so. However, the Court is saying the exact opposite. The key premise of Chevron is that it is far more democratic for government agencies than for the courts to interpret ambiguous provisions of laws enacted by Congress. Chevron's own words, repeated in Justice Elena Kagan's dissenting opinion in Loper Bright, are that “government agencies are not directly accountable to the public, but their chief executives are.” Government agencies are best positioned to resolve “competing interests that Congress itself has inadvertently failed to resolve, or has deliberately left to the relevant government agencies to resolve.” As the Chevron Court continued, “federal judges without constituencies have a duty to respect the legitimate policy choices made by those with constituencies.”
The Loper-Bright decision entrusts the court with enormous power, and it makes no secret of that fact. The decision itself is a paean to judicial power. But the court's logic also seems to traverse more dangerous territory. Its disregard for the democratic legitimacy of government institutions, and its assessment of itself and a few other institutions as true loci of democracy, are reminiscent of the populist rhetoric of former President Donald Trump.
Contrast this with the Court's deep skepticism of other sources of government power, including the Bureau of Alcohol, Tobacco, Firearms, and Explosives (which, as the Court explained, banned bump stocks only after “significant political pressure” and while rejecting its “prior guidance”), the prosecutors who applied federal anti-corruption laws against a former Indiana mayor in Snyder (which involved the expansion of federal laws targeting public corruption), state supreme courts such as the Colorado Supreme Court, which ruled that insurrectionist Trump could not run in state elections, and administrative law judges at the SEC (Justice Gorsuch noted that “the title 'Judge' in this context means less than it seems”).
By scorning all exercises of government power, Loper Bright makes great strides in the Supreme Court’s main project: the expansion of court power and the resulting disempowerment of other institutions.
The courts will give themselves enormous new powers and ensure that the most important decisions in our nation's life will continue to be made solely by the courts. This is no way to run a democracy.
