There are many claims made today that our Supreme Court is deeply divided and that ‘something’ should be done. Something, in this scenario, usually involves expanding the Court during times of Democratic Senate control in an effort to ‘pack’ the court with more activist judges. Because as we all know, most decisions of the court are decided along ideological party line votes, and ‘Conservative’ Justices appointed by Republican Presidents currently outweigh ‘Liberal’ Justices appointed by Democratic Presidents, right?
Not by a long shot. In fact, since 2008, cases decided by 5-4 or 6-3 ruling have only amounted to between 5% and 21% of decisions, while 9-0 rulings have decided the law anywhere from 36% to 66% of the time. In reality, the Court is most often perceived as a 3-3-3 Court with Justices Sotomayer, Kagan, and Jackson comfortably on the left, Thomas, Alito, and Gorsuch comfortably on the right, and Chief Justice Roberts, Barrett and Kavanaugh more centrally located, though leaning conservatively in matters of constitutional adherence.
Where the perception of division comes in is that 6-3 or 5-4 decisions typically involve cases of some significance or social application. The Dobbs case, the Fulton decision, the recent NCAA case, and immunity for former Presidents comes to mind, as well as the recent ‘Chevron’ case, the subject of my column today. In a 6-3 ruling in the case of Loper Bright Enterprises v. Raimondo, the Supreme Court recently overturned a 40 year old precedent, the so-called Chevron Doctrine. In so doing they dealt a severe blow to federal agencies’ ability to interpret ambiguous law.
The case started off as a small, localized issue. The National Marine Fisheries Service (NMFS) decided that the Magnuson-Stevens Act setting catch limits on fishing boats, gave them the green light to mandate a government inspector on every fishing boat to monitor compliance. These nonproductive members of the crew came with a cost of about $700/day. Loper Bright’s plaintiff maintained that $700/day for a non-productive tag-along, could spell the difference between eking out a profit and going under. More importantly, they argued, the NMFS lacked the authority to force it to comply.
Now the Chevron Doctrine has not been invoked by the High Court since 2006, but lower courts have relied on the precedent to rubber stamp even the most dubious rules emanating from various agencies over the years. Anyone who has witnessed our legislators at work understands why laws, like sausages, are better for not seeing them made. Laws are frequently made or left ambiguous out of laziness, lack of understanding, or simply because the author knows it’s bad medicine that may be corrected or amended in future years. Meanwhile unelected bureaucrats interpret the law as fits their agenda. For the past 40 years, those bureaucrats have relied on the Chevron Doctrine for their credibility.
No longer. While overturning Chevron will undoubtedly result in chaos for agencies which are accustomed to having their way with the public in what they posit is the best interest of their subjects, it significantly reins in their ability to interpret laws as they see fit. It places the onus back on Congress/Legislature to craft clear and unambiguous laws. Critics argue that overturning Chevron will return us to the days preceding the doctrine when judges legislated from the bench in haphazard fashion resulting in different interpretations of a law from jurisdiction to jurisdiction. But the flaws of Chevron were apparent right from the start, giving that right of interpretation to a variety of politically motivated agencies and commissions (think: EPA, FCC, CFPB, DOJ, etc.).
But it should not be a question simply of how you THINK a law should be interpreted, but a question of whether the law, or its interpretation, is constitutional. As Chief Justice Roberts explained in his opinion for the majority, “The doctrine lacked a constitutional basis and clashed with the Administrative Procedures Act’s command that courts ‘decide all relevant questions of law, and interpret constitutional and statutory provisions’. From the start, Chevron was a ‘rule in search of a justification’ if it was ever coherent enough to be called a ‘rule’ at all.”
The doctrine spawned confusion and conflict in lower courts as to whether a given law was ambiguous in the first place. As referenced by Justice Scalia five years after Chevron was decided in a piece entitled ‘How clear is clear?’, the result has been that legal demands on individuals and businesses can change with every election even though the underlying laws do not.
The three dissenting judges, while unable to cite a legal or constitutional rebuttal, deferred to ‘the rule of experts’ rather than the rule of judges who are not experts in the field. They fretted about ‘judicial hubris’ by injecting the courts into administrative affairs, and worried that some judges may again run off the rails.
But the Justices job is not to rule by ‘feelings’ but to make decisions based on constitutional authority. The Court’s decision in Loper Bright is another victory for our constitution, and for regular folks like you and me (and the Gloucester fishermen) impacted by the whims and vagaries of overreaching agencies. You may not like the decision, but the fact remains, the court is in place to render decisions like this. That’s why we have three branches of government. If each would stay in their lane and do the job to which they have been entrusted, decisions like this would not be necessary.