aka Loper Bright v. Raimondo

A note before you dive in: Loper Bright is best understood as part of a group of decisions that came out this summer that were targeted toward undermining and undoing the modern administrative state. I toyed with how to put together the information on this set of decisions and ultimately decided to create a blog post per decision and then a separate blog post placing the set of decisions in a greater socio-political context.

Specifically, Loper Bright aims squarely at Chevron, a case from 1984 that has been a bedrock of judicial interpretation. In what became known as Chevron deference, the Supreme Court laid out a two-step process for courts to follow when analyzing legislative agency cases and whether to defer to agency discretion.

Context

Loper Bright is based in a suit against US fishing regulations. These regulations were instituted to both manage and conserve US fishing stock off the US coast. They were a response to concerns about over-fishing US waters. The regulation in question in Loper Bright, which was no longer being funded or overseen by the National Marine Fishers Service (NMFS) at the time the case was heard before the Supreme Court, required fishermen to allow observers on board fishing vessels to collect data. If fishermen were participating in certain limited-access programs, in some cases, the fishermen would be required to pay for the observer themselves instead of relying on the federal government.

It’s notable that a) the case was essentially moot before being heard by the Supreme Court because the program in question was no longer in effect, and b) it was bankrolled by right-wing groups, including Koch Industries and other law firms affiliated with the Koch brothers.

Majority Opinion- by Chief Justice Roberts

Loper Bright is actually two cases combined from the DC Circuit and the First Circuit. Both cases question whether the agency had the authority to implement the rule and, also whether the fishermen had to pay fines. The decision only addressed the question of agency authority.

Loper Bright is an extraordinary power grab by the judicial branch. As Chief Justice begins his legal analysis with some Constitutional musing, he declares: “the views of the Executive Branch could inform the judgment of the Judiciary, but did not supersede it.” (page 9) The decision continues in similar blatant fashion.

The majority makes an excellent attempt at presenting a historical narrative, beginning its examination of agency power and balancing Constitutional limits in the New Deal era. In this version of events, the Court always allowed Congress the power to act within the legislative area, but questions of law were the single and sole domain of the Court. In particular, Congress had the ability to bestow factfinding power upon agencies, but questions of law were always to be decided by the courts, aside from rare and specific instances made explicit in law. The majority finds further justification for its conclusion in the Administrative Procedures Act (APA). Specifically, the majority relies heavily on Section 706: “to the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” The majority’s opinion hinges upon 706(2)(A)’s text ‘to “hold unlawful and set aside agency action, findings, and conclusions found to be… not in accordance with law.”‘ (page 13) In fact, though Roberts does pontificate on Chevron’s constitutionality, his reasoning

In turning to it’s crucifixion of Chevron, the majority states: “Chevron, decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional approach.” (page 18) This is an interesting characterization of the decision, considering that a “bare quorum” – or less- has decided some of the most radically conservative decisions in the past few years, such as Dobbs (5 in majority, 1 in concurrence, and 3 in dissent) and Students for Fair Admissions, Inc. (6 in majority, 3 in dissent). In addition, though only 6 judges joined the majority, the other 3 justices in Chevron did not participate– Justices Marshall and Rehnquist were ill and Justice O’Connor recused herself. In other words- Chevron was a unanimous decision. From there the majority essentially argues that Chevron was wrong when it was decided, it’s wrong now, and that’s why it needs to be overturned. Further, the opinion reasons, in so many words, that courts are qualified to make technical rulings because judges are smart and they can consult experts as they make decisions.

Alarmingly, the opinion relies heavily upon cases that the recent conservative majority has decided to rationalize its dismissal of Chevron as precedent with no current value. For example, the decision states: “this Court, for its part, has not deferred to an agency interpretation under Chevron since 2016.” (page 29) (at that point, Justices Roberts, Thomas, Alito, and Kennedy made up a strong conservative bloc on the Court) In this same section of the opinion, the majority goes on to cite heavily from cases within decided within the last 5 years as “tinkering” with Chevron’s supposed inconsistencies. This is tantamount to judicial gaslighting: the Supreme Court’s conservative created a record of decisions alleging the abominable nature of Chevron, which the Loper Bright decision cites to say that it has been problematic all along.

The majority’s decision ends by attempting to caveat the situation by noting that only Chevron is overruled and that previous decisions made according to Chevron’s two-step process are still valid and hold. This is small comfort from a majority that has shown a willingness to use their own radical decisions to justify further judicial policymaking.

Concurrence- Justice Thomas

Justice Thomas writes a concurrence to approve the majority opinion, noting that Chevron also was wrong because it violated constitutional principles of separation of powers by curbing judicial power and giving that power to the executive agencies.

I mostly bring up Thomas’ dissent to note the astonishing number of times he justifies this conclusion by citing almost exclusively to himself. In the 4 page concurrence, Justice Thomas cites to his concurrence in Baldwin v. United States, his concurrence in Perez v. Mortgage Bankers Assn., and his concurrence in Michigan v. EPA. Per habit, Thomas’ concurrence is an essay on pushing further boundaries of conservatism based on ‘I said it before’ and little else.

Concurrence- Justice Gorsuch

Justice Gorsuch writes separately to concur in Chief Justice Roberts’ opinion for some reason. He claims, like Justice Thomas, that Chevron was wrong, but for different reasons from what was written by Roberts and Thomas: stare decisis.

Justice Gorsuch’s originalist manifesto leaps wildly from 18th century English law to Marbury v. Madison, the first great judicial power grab, but contains little discussion of the relevant case law preceding the passage of the APA or Chevron, and skips wildly to the present strain of conservatism. What little discussion of APA-era jurisprudence is in the concurrence actually contains a concession to something like precedent for Chevron deference: “admittedly, for a period this Court toyed with a form of deference akin to Chevron.” (page 16) There is little on the precedent in the decades before Chevron.

In the heights of irony, in castigating Chevron‘s defenders, Gorsuch declares: “[b]ut in our democracy unelected judges possess no authority to elevate their own fictions over the laws adopted by the Nation’s elected representatives.” (page 13) Gorsuch goes on to wax eloquent over Blackstone’s concerns about upsetting the balance of power between branches of government: “[i]f a judge could discard an old meaning and assign a new one to a law’s terms, all without any legislative revision, how could people ever be sure of the rules that bind them?” (page 19). How indeed.

Dissent- Justice Kagan

Justice Kagan’s dissent is both a full-throated defense of Chevron and a blistering excoriation of the majority opinion’s questionable logic. The dissent notes that the US is a country of common law, not codified law. As such, it is entirely unreasonable to believe that the founders would have been able to foresee today’s judicial quandaries or that legislators could possibly foresee all potential issues with a law when it’s passed. Rather, Chevron is hardly remarkable in that it uses traditional judicial tools of analysis and simply provides a set framework for courts to use that framework. `

Justice Kagan spares no words on the majority, writing: “A rule of judicial humility gives way to a rule of judicial hubris… In one fell swoop, 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.” (page 3)

The dissent points out the very reason it is best to leave agency authority in place: agency staff are subject matter experts who are far more able to accurately and fairly answer questions such as distinctions between species of fish or how much noise disturbs the natural quiet of the Grand Canyon. As other commentators have pointed out, removing agency authority from the decision-making process replaces literally tens of thousands of years of experience with the hubris of 6 judges. It is also telling that over the decades since Chevron was decided, Congress has chosen not to nullify the decision.

Justice Kagan also takes aim at the majority’s misguided opinion: APA Section 706 doesn’t, in fact, require any standard of review for analyzing laws. In the years following the Chevron decision, numerous decisions failed to find Section 706 as a justification for overruling Chevron. In fact, the dissent points out the absolute obscurity of Section 706: “[i]n the decade after the APA’s enactment, [Section 706 was] used only four times in Supreme Court opinions (all in footnotes).” (page 19)

I end this post with the esteemed justice’s words, because she so much better captures the majority opinion’s essence than can I:

“But more to the point: The majority’s argument is a bootstrap. This Court has “avoided deferring under Chevron since 2016” because it has been preparing to overrule Chevron since around that time. That kind of self-help on the way to reversing precedent has become almost routine at this Court. Stop applying a decision where one should; “throw some gratuitous criticisms into a couple of opinions”; issue a few separate writings “question[ing the decision’s] premises”; give the whole process a few years . . . and
voila!—you have a justification for overruling the decision … I once remarked that this overruling through-enfeeblement technique “mock[ed] stare decisis.” I have seen no reason to change my mind.” (page 26)