Is The SCOTUS On The Verge Of A Revolution?

Never say never—the current makeup of the Court has shown an appetite for originalist makeovers. It wasn’t long ago that few thought the SCOTUS would ever overturn Roe v. Wade, or issue a sweeping 2A ruling. Or … take on the Administrative State. In several recent rulings the Court has shown a will to clip the wings of the Admin State, to empower the lower courts to slap down runaway federal agencies and to demand that Congress return to the thankless job of legislating and taking responsibility for the laws they pass.

Yesterday at the Court there were oral arguments on two cases that could finally lead to the scrapping of the Chevron deference doctrine. “Chevron deference” has been in effect since 1984 and is the absolute cornerstone of the Administrative State’s ability to run roughshod over the citizenry. It was one of the lowlights of Antonin Scalia’s judicial career. The Roberts Court, now with a solid sorta conservative majority, has been on a path to high noon for the Admin State. In each previous case, featuring agencies like the EPA, the Court has shown itself almost eager to restrict those agencies and to empower parties who challenge their regulations. But, until now, none of those cases directly involved “Chevron deference”—self imposed judicial deference for the supposed “expertise” of federal agencies. This is now. The cases that were argued yesterday were explicitly all about Chevron deference. Commentators on both the Left and Right came away from the oral arguments believing that Chevron may be on life support, and that the plug could be pulled come June.

This morning Margot Cleveland reviewed these cases and the concept of Chevron deference at The Federalist:

7 Takeaways From Arguments In The SCOTUS Case That Could Slay The Administrative State

Wednesday’s arguments were all about whether the Supreme Court should do away with the unworkable Chevron deference.

Cleveland goes through the details of the whole concept of Chevron deference, far more so than I did, above. That’s fine—follow the link if you’re an insomniac What interested me was Cleveland’s cautious evaluation of the prospects for overturning Chevron, which comes in the seventh and final section of the article. Part of that caution undoubtedly comes from the fact—and no legal analyst doubts this—that a decision that overturns Chevron would be a true revolution in how America is ruled. So, this is how Cleveland evaluates the “conservative” lineup on the Court:

From oral argument, Gorsuch and Kavanaugh seem definite votes for reversing Chevron deference. Thomas, given his past writings, seems a likely vote for reversal. In one exchange, Justice Samuel Alito seemed to mirror much of Kavanaugh’s thinking, namely that the courts already interpret statutes in other areas, and can do so here too, without needing to defer to agencies.

Both Justices Roberts and Barrett were more coy in their questioning, creating uncertainty about their positions. Conversely Kagan, Sotomayor, and Jackson all favored the Chevron framework.

Bottom line: There is no sure-fire forecast of the outcome. …

By all accounts Kavanaugh led the charge against Chevron during the oral arguments. That was no surprise at all. Opposition to the Admin State has been a fundamental and strongly expressed feature of Kavanaugh’s thinking for as long as anyone can remember. The same goes for Gorsuch, and I would maintain that there is every reason to believe that Thomas and Alito and are on the same page as Justice Brett and Gorsuch. Justice Brett has also, in the past, shown a tendency to side with Roberts, so his charge against Chevron is, to me, and indicator that he was not simply going out on a limb—that he may have Roberts on his side. On the other hand, this interesting article from a month ago features Kavanaugh taking an opposite side to Roberts in the leadup to the Dobbs case (although also seeking an accommodation among the justices). I recommend the article for its insight into how the Court works:

Amy Coney Barrett reportedly opposed hearing case that overturned Roe v. Wade

Now, on the other hand there’s an article at Red State that summarizes views on the justices stand regarding Chevron deference—those views were expressed at Slate, so, lefty views. The RS title expresses the views of the Slate author:

Today's Supreme Court Argument Hints That It Will Drive a Stake Through the Heart of Federal Rulemaking

The Slate author has no doubt of where Kavanaugh and Gorsuch come down on Chevron deference. He also states—and I believe he’s correct—that Thomas and Alito are “on the record” in opposition to Chevron. My belief is that Roberts is a probable, based on the past Admin law cases, as is Justice Amy. The Slate author, who is rabidly pro Admin State, rates them thusly:

… Chief Justice John Roberts and Justice Amy Coney Barrett played it straight at first, asking real questions that hinted at an understanding of the mess that’ll flow from Chevron’s demise. But by the end of arguments, both were hounding Prelogar with telltale complaints about the ostensibly arbitrary and power-drunk executive branch crushing the rule of law. …

Here’s the bottom line: Without Chevron deference, it’ll be open season on each and every regulation, …

The description of Justice Amy’s line of questioning is telling. Rule of law and due process are central themes for her legal thinking, and they crop up in this article that assesses her pre-SCOTUS views:

NCLA’S ANALYSIS OF HON. AMY CONEY BARRETT FOR THE U.S.
SUPREME COURT BASED ON HER ADMINISTRATIVE STATE VIEWS

Judge Barrett has defended Americans’ due process rights on college campuses and joined panel decisions and dissented from other panel decisions reviewing administrative power. She has not authored significant judicial opinions or publications directly on administrative law, nor ones challenging the various deference doctrines. That said, in the cases on which she has sat, she has not always accorded deference.

That sounds promising to me. Especially in light of the previous Admin law decisions.