The Supreme Court sit for a group portrait on Oct. 7, 2022. With a durable 6-3 majority, legal conservatives mostly treat the value of judicial restraint as passé, even naïve.
Although the 40-year-old Chevron precedent was mostly unknown to non-lawyers until recently, overturning it will have profound consequences for the legal system and the whole apparatus of government through regulation. So it was always a little anomalous for courts to defer to agencies’ statutory interpretations under Chevron, rather than deciding legal cases for themselves. But the modern administrative state is complex. Applying Congress’s vague directives can be a highly technical task, perhaps better done by subject matter experts than judges. Seen in that context, Chevron was one of the greatest statements of modesty in the history of U.S. law.
In dissent, Justice Elena Kagan, a former professor of administrative law, repeated the arguments in favor of Chevron — arguments that have been orthodoxy throughout her legal career. The most powerful one is that Congress can’t possibly govern complex regulatory matters itself. It needs agencies and their expertise. Interpreting law and enacting regulation are key parts of the agencies’ exercise of their expertise.
Roberts is probably right about the public. But environmentalists and other safety advocates are now very much on notice that, even under a Democratic president, conservative courts will find it easier than ever to overturn agency action they don’t like.
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