The Supreme Court Could Permanently Break the Government. Liberals Have a Chance to Stop Them.

On January 17, the Supreme Court hosted oral arguments in Loper Bright Enterprises v. Raimondo which, while over a hyper-technical legal issue, lasted more than three hours, drawing wide coverage from mainstream media. At issue was whether the court should overturn what’s become known as “Chevron deference.” Established as a precedent in a 1984 decision, Chevron v. NRDC, Chevron deference requires federal courts to “defer” to—that is accept without attempting their own interpretation—“reasonable” executive agency interpretations of governing statutes.

The consensus, following the oral arguments, held that the justices did seem likely to abolish Chevron. Liberals reacted to this prospect in near-apocalyptic horror, typified by the Center for American Progress, which put out a statement saying that “completely do[ing] away with Chevron deference [will be] existentially threatening.” Indeed, the argument seemed to indicate that at least three of the right-wing bloc—Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch—and, quite plausibly, as many as all of the remaining three—Brett Kavanaugh, Amy Coney Barrett, and Chief Justice John Roberts—could wind up doing just that. (For his part, The New Republic’s Tim Noah came away unconvinced that Barrett and Roberts were locks to vote against the doctrine.)

Regardless, liberals should not simply throw up their hands in despair, cowering in their foxholes as they wait for the decision to drop. Instead, a closer look at what the individual justices said in the argument and in relevant past pronouncements is warranted—the better to peel back the hyperbolic rhetoric on both sides and surgically identify what is really at stake. Above all, liberals need to act—to hone and execute messaging strategies that strip away the legalese, maximize prospects for the best possible outcome in the pending case, or at least minimize the worst.

Furthermore, they should seize the opportunity presented by the unusual media interest in this forbiddingly off-putting case to spotlight, and lay groundwork for, sustained political opposition to the yen of both the furthest-right justices and their deep-pocketed political allies, who have long sought to incinerate long-standing fiduciary, health, safety, environmental, and safety-net regulatory safeguards. Few Americans have any sense that these vital protections are under dire threat from the Supreme Court.

Whether or not the court overturns Chevron, or offers some more narrow nip and tuck to the doctrine, the question that will matter is: What specific instructions will the decision lay down for judges to calibrate agencies’ flexibility in implementing statutory mandates? If the court instructs that broadly worded statutes must be read accordingly—to continue granting agencies broad discretion to decide how to interpret instructions from Congress—then the impact could be much less than anti-regulatory zealots hope and liberals fear. The argument indicated that such an outcome, while hardly certain, is not implausible.

The answer to that big question will depend on Justice Brett Kavanaugh. During oral arguments, Kavanaugh channeled a 46-page Harvard Law Review article he had published in 2016, two years before President Donald Trump nominated him to the Supreme Court. The crux of the piece, which was titled “Fixing Statutory Interpretation,” was that existing Chevron doctrine inappropriately makes judges’ decisions whether to defer turn on a murky distinction that has yielded arbitrary and inconsistent, though hugely consequential, outcomes.

The threshold question judges face, Kavanaugh emphasized, is whether the meaning of statutory language in question is, on the one hand, “clear,” “plain,” or “unambiguous”—in which case judges themselves should apply that meaning (as they understand it)—or “ambiguous,” in which event judges should accept the agency’s view. Experience has proven, he contended, that the difference between the two categories rests purely in the eye of the beholder. 

Instead, Kavanaugh wrote, judges should simply seek from the outset, and later apply, their own “best reading” of the relevant terms. However, he stressed, this “suggested approach” would require judges to “still defer to agencies in cases involving statutes using broad and open-ended terms like ‘reasonable,’ ‘appropriate,’ ‘feasible,’ or ‘practicable.’” “In those circumstances,” then-Judge Kavanaugh wrote, “Courts should be careful not to unduly second-guess the agency’s choice of regulation.”

High-impact regulatory actions that trigger all-hands-on-deck industry court challenges most often rest on just the sort of broad statutory provisions specified by Kavanaugh to merit continued deference to agency discretion. For example: The 1970 Clean Air Act requires the Environmental Protection Agency to establish National Ambient Air Quality Standards, or NAAQS, “designed … in the Administrator’s judgment … to protect public health with an adequate margin of safety and to protect the public welfare from any known or anticipated adverse effects.” (Emphasis added.)

In similar fashion, the 2014 Federal Trade Commission Act empowers the FTC to choose among a wide array of regulatory tools to “prevent unfair methods of competition and unfair or deceptive acts or practices affecting commerce.” The 2013 Federal Reserve Act empowers the Fed to deploy make-or-break powers over the national economy to “maintain long run growth of the monetary aggregates, commensurate with the economy’s long run potential to increase production, so as to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates.”

In the January 17 argument, now-Justice Kavanaugh reiterated the thrust and specific formulations from his 2016 article. “My understanding,” he lectured, “is Congress oftentimes will use terms like ‘the agency can regulate reasonable limits’ or ‘appropriate limits,’ and that gives, under [Supreme Court precedent predating Chevron] a lot of discretion to the agency to make choices … to think about the world as it exists five years from now or 10 years from now and not have to worry about going back to Congress … and [that Congress] can legislate broad policy discretion explicitly through words like ‘reasonable,’ ‘appropriate,’ and public interest.” 

Kavanaugh wrested from industry counsel agreement that “in many cases, maybe most cases, the best understanding of those types of capacious words is that Congress is in fact conferring the discretion on the agency.”

Fellow Trump appointee Justice Barrett echoed Kavanaugh’s stress on the need for courts to respect broad statutory mandates “task[ing agencies] with deciding what was the most feasible, most useful, most reasonable” method to uphold their legal mandates.

If Kavanaugh’s and Barrett’s oral argument performances can be taken at face value—and/or if Chief Justice Roberts would join them—a post-Chevron regime could retain directions that courts continue to uphold and enforce the mass of twentieth- and twenty-first-century laws whose terms expressly delegate broad discretionary authority to regulatory agencies. This could come in the form of a 6–3 decision in which Alito, Thomas, and Gorsuch either join or concur in the result or, less plausibly, a 9–0 or 6–3 decision in which the liberal justices join for damage-limitation purposes. 

Naturally, there is a catch—or rather two catches. First, the high court’s supermajority right wing has already flaunted its readiness to disregard precisely the sort of “capacious” statutory terms that Kavanaugh’s caveat purports to respect. Not two years ago, in June 2022, the right-wing justices invented a mutant version of the till-then rarely invoked “major questions” doctrine in order to set aside EPA’s Clean Power Plan regulations. These regulations, the justices were obliged to acknowledge, were textually authorized by the Clean Air Act’s explicit command to deploy the “best system for emission reduction.” 

Nevertheless, the justices invalidated EPA’s regulations. They accomplished this by turning “major questions” into an open-ended recipe enabling them to strike down any agency action that could have what they consider prohibitively significant economic or political impact. In that law-canceling case, the anti–global warming regulations struck down clashed with top priorities of the GOP megadonors and politicians bent on keeping the world safe for fossil fuels. 

In the recent argument on the fate of Chevron, Chief Justice Roberts revealed little if anything of his own views on the merits, except seeming to pooh-pooh the “actual” difference that interring Chevron would make. What that offhand comment did reveal was that, in the chief justice’s mind, his 2022 decision had so hollowed-out Chevron that not only was deference to agencies a thing of the past but so was any guarantee that his court will honor clear, statutory delegations enacted by Congress and signed by the president.

Thus, as Roberts’s skepticism suggests, the issue to retain or dispense with Chevron, so hotly debated around the pending Supreme Court case, probably won’t affect “major” controversies that get to his court—and, by and large, the only cases that his court takes up are “major.” So, at this point, if Chevron falls, even if Kavanaugh’s discretion-preserving caveats are incorporated in the court’s decision, that will affect only challenges to regulation in the lower federal courts. But that is a big deal. And it gives rise to the second catch.

This catch arises not merely because, as administrative law expert Professor Thomas Merrill wrote in an amicus curiae brief, the Supreme Court considers only a “handful” of statutory interpretation, whereas “lower federal courts have caseloads many times greater [and lack] the decisional capacity to engage in an exhaustive review of every statutory interpretation question arising on judicial review.” A far worse threat is that overturning Chevron, however qualified, will surely be brandished, by the cadre of partisan judicial zealots sitting on federal district and appellate courts, as a license to seize every opportunity to further their cherished goal of “dismantling the administrative state.”

Just as surely, these judges will be handed multiple, strategically selected such opportunities by litigators representing and funded by the same industrial, financial, and political interests behind the pending challenge to Chevron. As recent experience has amply demonstrated, even if Supreme Court majorities ultimately reverse, anti-regulatory interests can generate interim gridlock that obstructs or defeats outright valid and urgently needed agency initiatives.

So what should liberal leaders do? They should get out the message early, often, hard, and, above all, smartly—to keep media attention trained on the case and on the legal and real-world-impact reasons right-wing judges must be kept from second-guessing valid regulatory decisions. Just as the Dobbs decision created a post-Roe dystopia along fault lines that few imagined in advance, the gutting of Chevron will have numerous ill effects that will impact the quality of life of ordinary Americans in ways that hardly anyone has anticipated.

In all likelihood, the final decision on Chevron’s fate will not come till the end of the term in June. But here, recent experience is a valuable guide. Last term, the high court rendered several surprisingly positive decisions, and sustained campaigns of canny liberal pressure and messaging played a big role in pushing the Roberts court to make those volte-face course corrections. Here in this interval, and in light of the signals sent during the oral argument, liberal advocates and, above all, politicians should feel like they still have time enough to have an impact on the justices’ final ruling, including on what they end up saying in their decisions and possibly how they align.

In the longer run, media attention to this case opens a critical opportunity for liberals to spotlight the fact that battles in and about this Supreme Court are not simply over culture-war issues—important as those issues may be—but also over this court’s threat to basic economic, health, safety, and environmental concerns of everyday Americans. This is a threat hiding in plain sight that liberal leaders’ relative inattention has for decades led the media and the electorate to ignore. 

More specifically, liberal messaging needs to vanquish the “administrative state” frame that the right has, unanswered, draped over the arena of judicial oversight of regulation. It must detail how, in the real world, what is at stake is not this single portentous abstraction of a far-off bureaucracy but rather myriad specific guarantees of fundamental, concrete needs for virtually all Americans.

Representatives and advocates for particular interests and constituencies need to add this threat to the priorities they stress with their communities. And, critically, they should stress that the right aims to take away long-standing, vital legal and regulatory safeguards.

One aftershock of Dobbs’s evisceration of abortion access is that the populace is now conditioned to grasp that this court can strip rights and safeguards long taken for granted, including by large constituencies who had long seen no need to pay attention to the court. This sort of messaging about meeting everyday Americans’ material needs is congenial for liberals. They need now to train that skill on the threat to those needs from this reactionary court.

But also, liberal leaders, especially political leaders, must take on messaging efforts of a sort to which they have become singularly unaccustomed, unlike predecessor icons such as Franklin Delano Roosevelt, Abraham Lincoln, and the original Founders—as I and others have shown. This means spelling out, in informed but slickly packaged ways, the legal stakes—what legal principles and precedents are essential to preserve the ability of the people’s representatives to meet their urgent needs.

An overarching point should be that the courts must follow the law, which the right is out to dismantle, and which the right-wing justices on the Supreme Court have demonstrated they themselves are primed to do, when their political and megadonor patrons so demand. Talking points can include acknowledgments by the right-wing justices themselves that Congress can “legislate broad policy discretion” and empower government to “make choices about the world as it exists five or 10 years from now,” to enable agencies to deploy the “most feasible, most useful, most reasonable” tools to serve those goals and enable ordinary people to meet their urgent needs. On the need to follow the law, and ensure that government can get that job done, the justices on the right have talked the talk but not always walked the walk. 

Finally, as I have written, and some Democratic political leaders have figured out, spotlighting Supreme Court ethics reform, and the embarrassingly flagrant misadventures that have raised the salience of that issue, is a serendipitous opportunity for keeping the reality of the right-wing megadonor threat before the press and the electorate.

In the pending Supreme Court case, numerous advocacy organizations filed amicus curiae briefs detailing the peril to vast constituencies and the integrity of democratic government. Several leading environmental organizations—the Environmental Defense Fund, the Natural Resources Defense Council, the Conservation Law Foundation, the Ocean Conservancy, and Save the Sound—ticked off on-the-mark message points that both touted the virtues of Chevron deference while describing the industry-funded drive to gum up the works and cripple the federal government’s ability to erect robust quality-of-life safeguards.

The Lawyers’ Committee for Civil Rights Under Law stressed the need for “ensuring that federal administrative agencies make real the promises of our nation’s civil rights laws through Congressionally authorized rulemaking and enforcement.” Eighteen major health associations, led by the American Cancer Society, underscored that “publicly funded health insurance programs such as Medicare, Medicaid, and the Children’s Health Insurance Program” are critical for ensuring health care access for millions of Americans. 

This group also noted that “the Centers for Medicare & Medicaid Services is the expert agency with responsibility for implementing these famously complex statutes … [requiring] myriad policy-laden interpretive determinations,” and that it is “vastly preferable for such authority to lie with a centralized agency, staffed with subject matter experts and accountable to the President, Congress, and the courts, rather than expect that Congress or the courts would be willing or able to assume such a role.” 

The AFL-CIO likewise warned that the National Labor Relations Board promotes uniformity and harnesses “expertise that the Courts lack.” Public Citizen, the consumer advocacy group originally launched by Ralph Nader, cited publications by conservative Justices Barrett and Kavanaugh, and prominently quoted a 2013 opinion by the late conservative icon Justice Antonin Scalia that “Chevron is rooted in a background presumption of congressional intent” and is “firmly grounded” in relevant constitutional and statutory law.

Senator Sheldon Whitehouse and several fellow Senate Judiciary Committee Democrats filed a brief detailing “the assault in this case on the regulatory system” as part of a fossil fuel industry–funded “campaign to delegitimize and dismantle federal regulations,” urging the court not “to enlist in an industry-driven deregulatory agenda.” This is a good start. It’s now for all constituency-based friends of the court to pivot, and galvanize their members, funders, supporters, and political patrons in calling out and beating back the nefarious campaign to remove the authority to govern our lives from the hands of the people and place it instead in the purview of unelected and unaccountable judges.