Will Barrett and Roberts save Chevron?
Ian Millhiser has a tiny bit of hope:
Four justices appeared absolutely determined, on Wednesday, to overrule one of the most consequential Supreme Court decisions in the Court’s entire history.
Chevron v. National Resources Defense Council (1984) is arguably as important to the development of federal administrative law — an often technical area of the law, but one that touches on literally every single aspect of American life — as Brown v. Board of Education (1954) was important to the development of the law of racial equality. Chevron is a foundational decision, which places strict limits on unelected federal judges’ ability to make policy decisions for the entire nation.
As Justice Ketanji Brown Jackson said during Wednesday’s arguments, Chevron forces judges to grapple with a very basic question: “When does the court decide that this is not my call?”
And yet, four members of the Supreme Court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — spent much of Wednesday’s arguments in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce speaking of Chevron with the same contempt most judges reserve for cases like Plessy v. Ferguson (1896), the pro-segregation decision rejected by Brown.
The open question is whether the Court’s four most strident opponents of this foundational ruling can find a fifth vote.
None of the Court’s three Democratic appointees were open to the massive transfer of power to federal judges contemplated by the plaintiffs in these two cases. That leaves Chief Justice John Roberts and Justice Amy Coney Barrett as the two votes that remain uncertain. To prevail — and to keep Chevron alive — the Justice Department needed its arguments to persuade both Roberts and Barrett to stay their hands.
Barrett, of the two, appeared the most open to preserving Chevron. Among other things, she repeatedly expressed concerns about the disruptive consequences that would result from overruling one of the most widely cited Supreme Court decisions of the last century. As Justice Elena Kagan noted at one point, Chevron has been cited by 17,000 lower court decisions, and Barrett appeared troubled by the “flood of litigation” that would result if all of these decisions were called into question.
Roberts, meanwhile, spent much of Wednesday’s arguments downplaying the significance of Chevron. That said, the Chief did have a colloquy with Paul Clement, one of the lawyers arguing in favor of overruling Chevron, which suggests he may be looking for a way to hand Clement’s client a narrow victory without deciding if Chevron itself should fall.
So the bottom line is that, if you are a gambler, you should bet on Chevron being overruled. But there is an off chance that Roberts and Barrett will decide not to make one of the biggest power shifts to an unelected branch of government in American history.
There’s not much to hang your hopes on there but I suppose it’s better than nothing. This is the most important GOP establishment project out there and it’s also a priority of MAGA guru, Steve Bannon (“deconstruction of the administrative state”) It’s a huge case. Keep your eyes on it.
Millhiser has much more at the link. It’s probably a good idea to take a few minutes to read the whole thing. We’d better hope that two of the terrible majority haven’t completely gone to the dark side.