WASHINGTON—The U.S. Supreme Court’s right-wing bloc seems on the verge of a massive shift in federal power from an elected Congress and administrative agencies like the National Labor Relations Board accountable to lawmakers—to unelected and unaccountable federal judges, especially on the High Court itself.
And that has drastic implications for workers and their allies, and not just in labor law. Choose any regulation you care to think of, and any agency you care to think of, and judges would take its rules out of its hands and put it in their own.
And given the limited knowledge judges have about everything from labor law’s details to whether the EPA has the power to clean up the air, that’s scary—especially with so many federal judges in lower courts who are ideologues in black robes handpicked by former Republican Oval Office occupant Donald Trump.
The big shift isn’t guaranteed, despite the prior tendency of the court’s five-justice right-wing majority to overturn precedents left and right, from rewriting labor laws to deleting the constitutional right to abortion.
That’s because one of the five, Justice Amy Coney Barrett, appeared skeptical of completely putting everything in judges’ hands. And Chief Justice John Roberts, who is conservative but who sometimes honors precedents, seemed to search for a middle ground, limiting but not killing deference to agency expertise.
The three Democratic-named justices—Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan—showed by their questions that they support leaving decisions to the agencies. If the three are joined by Justice Barrett and Chief Justice Roberts, that group wins.
The implications came up before the court on January 18, in two cases challenging what’s known as Chevron deference, after a 40-year-old case, involving Chevron oil company.
In 1984, the justices ruled that unless an agency, in that case the EPA, was so obviously wrong in interpreting its own law, courts should defer to the decisions and orders of its expert staffers, just as Congress intended when it wrote the laws involved. EPA wasn’t wrong, and Chevron lost. The Natural Resources Defense Council brought the case, trying to get EPA to enforce the law against Chevron.
Chevron deference is especially important, both the lawyers arguing the cases and the justices noted, when the laws themselves are ambiguous, because of congressional compromises. Or when the laws are silent because of unanticipated developments, as is the case with labor law, the AFL-CIO pointed out in its friend-of-the-court brief.
“Congress gave the NLRB authority not simply to apply the law, but to ‘develop’ the law,” AFL-CIO General Counsel Craig Becker, a former NLRB member, wrote.
“Chevron thus provides a stable background rule against which Congress can legislate: Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency.
“When Congress expressly delegates to an agency the authority to make specific policy determinations, courts must give the agency’s decision controlling weight unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’”
The venal, vicious, worker-hating, and corporate-funded National Right To Work Legal Defense Fund filed a friend-of-the-court brief blasting the NLRB’s decisions as a specific example of why agencies should be stripped of deference, with decisions left to judges.
Other right-wingers, including think tanks, red state governments, and a horde of Republican lawmakers, also agitated in their friend-of-the-court briefs for stripping the agencies of deference. Ohio, Florida, North Carolina, Wisconsin, and Mississippi have dumped deference to state agencies.
The court appeared split three ways during the 3 1/2 hour discussion of two cases challenging Chevron deference. Donald Trump-named Justices Brett Kavanaugh and Neil Gorsuch, plus right-wingers Samuel Alito and Clarence Thomas, want to throw Chevron out and leave all the power in the hands of the courts. Gorsuch ruled against a federal agency while a circuit court judge.
“One option would be to say it’s ambiguous and, therefore, the agency always wins,” said Gorsuch. “That’s what I understood Chevron to mean, at least coming in here today.” The original Chevron case was against Ronald Reagan’s EPA, headed by his mother, right-winger Anne Gorsuch.
The court’s three Democratic-named justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—agreed with Biden administration Solicitor General Elizabeth Prelogar that the justices should uphold Chevron deference.
“I think that there’s a real separation-of-powers danger here to the extent that you’re saying that the judges are deciding whether or not this is something the agency should do or not, whether this is a legal question or not,” Justice Jackson said.
When you’re a hammer
“You know, there’s the old saying that when you’re a hammer, everything looks like a nail.
“And I’m concerned judges are going to look at all of the questions related to a statute and call them legal if we don’t have something like Chevron that requires judges to be actually thinking about their proper role.”
“There’s such a tension in this,” Justice Sotomayor said. “Interpretive authority, everybody seems to concede, means discretion.
“It means there are multiple meanings you can take from something, and someone has to choose among those meanings. It seems like most people agree if the statute uses ‘reasonable,’ Congress is delegating the definition of ‘reasonable’ to the agency, and the agency is deciding what is reasonable within some outer limit either set within the statute or within the law.
“But the point is it’s great rhetoric, Mr. [Paul} Clement, but we do delegate. We have recognized delegations to agencies from the beginning of the founding of interpretation.” Former GOP Solicitor General Paul Clement was one of the lawyers arguing to overturn Chevron deference.
Justice Barrett was skeptical of both sides. Chief Justice Roberts seemed to search for a middle ground, curbing absolute Chevron deference but not throwing it out on its ear.
“The Solicitor General…talked about how litigants will be lining up for cases” previously decided using Chevron “to seek to reopen challenges to the agency’s interpretation,” Justice Barrett told Clement. “What do you have to say about the disruptive consequences of overruling?”
“I think the Solicitor General…will be saying the exact opposite if this court overrules” Chevron “and will be saying, no, you’ve got to look at it at the right level of generality,” he replied.
There is, of course, an alternative to letting agencies promulgate rules and interpret laws Congress passes: Let Congress do it. Justice Sotomayor threw cold water on that.
“Ambiguity is not always a delegation,” Clement said. ‘More often, what ambiguity is, is ‘I don’t have enough votes in Congress to make it clear, so I’m going to leave it ambiguous.’”
“You end up in gridlock, which we have now,” the justice told Clement.
The justices are expected to rule on the cases by the end of June.
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