The Chevron deference and the US climate policy's herring problem

It is nearly impossible to conceive of any significant environmental regulation over the past four decades that has not involved the application of the “Chevron deference.” It’s one reason conservatives and others, e.g., the fossil fuel industry, are now rooting for the US Supreme Court (SCOTUS) to strike down the deference—in the name of the separation of powers set out by the US Constitution.

The instruments of the deference’s possible destruction will be the high court’s decisions in two cases involving herring fishing. The cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. US Department of Commerce could be to administrative law what Dobbs v. Jackson Women’s Health has been to as a woman’s right to an abortion. A decision is expected this summer.

Parts 1 and 2 of “Does US Climate Policy Have a Herring Problem?”, discussed the deference as well as a number of other cases, e.g., Jarkesy, that together could radically change the way regulatory and quasi-judicial proceedings are triggered and conducted.

Here, in Part 3, I’m suggesting that Justices Roberts and Barrett may put themselves on the side of the liberals for both legal and non-legal reasons. It’s heresy, I know.

However, it’s conveniently naïve to think high court justices are immune to the news of the day or the unsettling effects of the current hyperpartisan era We, the People have been living in since before the turn of the century.

Of the solidly conservative majority, Roberts and Barrett have shown themselves mindful of the operation, i.e., the spirit, of American democracy as well as what they believe to be the letter of the its laws. A drastic U-turn in settled law didn’t seem to bother either justice in the matter of a woman’s reproductive rights. Will it matter to them now? We’ll just have to wait and see. However, I wouldn’t be at all surprised.

In the Supreme Court, we trust? 

Veteran court watchers are handicapping the outcome in Loper and Relentless. They count the three liberal justices (Kagan, Sotomayor, and Brown) in favor of keeping the deference. They also see Justices Gorsuch, Alito, and Kavanaugh as the most likely to vote in favor of rescission. All six justices have written opinions in other cases supporting these conclusions.

It leaves Chief Justice Roberts and Justice Barrett as the possible swing votes. Why Roberts? According to Jonathan Adler, a law professor at the Case Western Reserve University School of Law, the chief justice is recognized as a conservative minimalist who “seeks to avoid sweeping decisions with disruptive effects.” Although Roberts voted with the conservative majority in Roe, he wrote separately that “he would have upheld the Mississippi law at the center of that case, which bans abortion after 15 weeks of pregnancy, but not have reversed Roe.”

Why Justice Barrett? SCOTUS just told Colorado that it couldn’t keep Trump off the ballot based on the 14^th Amendment prohibiting insurrectionists from holding “any office, civil or military, under the United States, or under any State.”

Barrett joined the three liberal justices in the case. in which Colorado’s efforts to keep Trump off the ballot accused them of having made the decision in the case more expansive than it needed to be. Although the decision in the case was unanimous at 9 – 0, there were visible cracks in the conservative block.

Barrett wrote a separate opinion that recognized the political environment was broiling and would only get more amped as the November elections draw near. The justice wrote: "In my judgment, this is not the time to amplify disagreement with stridency.” (Italics mine)

Barrett also spoke of the importance of unanimity. The implication was clear. If the nine justices with all their differences can get along, then the country’s political leaders should be able to follow suit. It sounds easy enough. But what of Trump? He’ll continue stoking the fires between now and election day. It’s his brand of politics. Should he lose, there’s no telling how high and how long the fires will last.

Like the chief justice, Barrett is on record supporting stare decisis, which roughly translates as that which came before; it refers to the reliance placed on judicial precedence. Stare decisis is critical to the concept of not foisting a sweeping change on society in one fell swoop—but in progressive steps. However, both Roberts and Barrett reserve their options.

In Dobbs, Barrett was reported to recognize the “benefits of stare decisis” but also emphasized that “it’s not an inexorable command, and that there are some circumstances in which overruling is possible.’” It’s a sentiment with which the chief justice can agree.

Notwithstanding their reverence for judicial precedence, Barrett and Roberts had little problem overturning Roe vs Wade in a giant 180-degree turn. Will they do the same with Chevron?

“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”·       

— Justice Amy Coney Barrett

SCOTUS is as much a part of today’s culture wars as Congress or the White House. Notwithstanding the chief justice’s protestations to the contrary, judges and justices are identified in the media by their political and judicial leanings and the president who nominated them. In confirmation hearings, senators seek commitments to rule on cases they’ve yet to hear and impliedly give their word, only to rule as if no wink was given. To the casual observer, judges rule in lockstep with their appointee’s politics.

The Brennan Center’s Douglas Keith is brutally direct in his assessment of the high court’s high jinx. “By deciding questions it doesn’t have to, making major decisions via unexplained orders, and tainting key rulings with ethical lapses, last term’s decisions give the public reason to think the Court is not saying what the law is, but what the justices personally prefer it to be.”

Among the issues Keith cites are ethical questions concerning Justice Thomas acceptance of hundreds of thousands of dollars in “financial largesse” from a Texas billionaire and travel perks given to Justice Alito. In both cases, their failure to recuse themselves from cases involving the possible interests of their benefactors has also been questioned. And what of Justice Thomas’s concurring opinion in Dobbs in which he said that the Supreme Court should reconsider opinions protecting same-sex relationships, marriage equality and access to contraceptives. It was a red flag to a significant percentage of the population, who now believe that Thomas and possibly others on the high court bench have already decided on cases yet heard.

Is the Supreme Court getting a bad rap? Possibly, but perception is important because it helps to inform beliefs. According to a recent Gallup poll more than half (54 percent) of Americans have an unfavorable opinion of the high court.

Where does all the recent bashing of the branches of government lead?

Questioning the legitimacy of all three branches government has become de rigueur especially in the right-wing media and in the speeches and social media postings of former President Trump. Elections are stolen; the judge hates me; RINOs (Republicans In Name Only) in Congress “may be the lowest form of life”; a cabinet secretary can be impeached over policy differences; hang the vice president.

Trump’s personal assaults on judges, e.g., racial, political, and ethnic, are spurring other political leaders—particularly red state politicians—to take action, although not the kind of action one might expect from those who have sworn an oath to support and uphold the US Constitution[ii].

"I do solemnly swear (or affirm) that I will support, obey, and defend the Constitution of the United States.”

Article VI of the US Constitution 

US Congressman Chip Roy (R-TX) recently suggested in a posting on X, formerly Twitter, that in a case involving illegal immigration, Texas “should ignore the Supreme Court’s order allowing federal authorities to remove barbed wire along the southern border.” (Italics mine) Roy isn’t alone in suggesting that, for Republicans, following a US Supreme Court decision is optional.

Oklahoma Governor Kevin Stitt (R) has indicated it would be okay for the Sooner legislature to disregard a Supreme Court decision under certain circumstances. In a CNN interview, he stated that “if the Supreme Court gets something wrong—if they tried to ban and say that we didn’t have a Second Amendment right to bear arms — I think the Constitution supersedes somebody in Washington, DC, telling us, you know?”

Stitt is implying that it’s a citizen’s right to treat the opinions of the highest court in the land as mere suggestions that can be accepted or rejected at will. Willfulness is a watchword for anarchy not democracy. Trump and company use it to justify dismissing out-of-hand anything that doesn’t validate the MAGA mentality.

In Alabama, the Republican-controlled legislature to “[flouted] a Supreme Court order regarding the state’s congressional map.” The high court upheld a lower-court ruling that required the legislature to add a second congressional district “in which Black voters either comprise a voting-age majority or something quite close to it.”

However, the Yellowhammer state’s legislature ignored the part where the court said either “a majority or a near-majority of black voters.” Instead, it crafted a district that was just 40 percent Black. The lower court rejected the ploy, saying it was “unaware of any other case in which a state legislature” declined to abide by such an order. The Supreme Court again upheld the lower court’s ruling.

Reform rather than rescission?

There are good options available to the justices that don’t include a total reversal of Chevron. Professor Merrill believes in putting Congress and future plaintiffs on notice that any delegation to executive agencies must be clear and deliberate. Once the delegation issue is clear, it can be left to the agencies to follow through—much as they do with deference now.

If the Supreme Court engages in too much overruling of doctrines it has previously embraced, no one will take seriously what the court proposes to put in their place.

— Thomas Merrill

US Solicitor General Prelogar agrees. During oral arguments, she suggested that the court could “clarify and articulate the limits of Chevron deference without taking the drastic step of upending decades of settled precedent.” The solicitor general urged that when a statute is ambiguous that the justices “use all of the interpretative tools at their disposal and not “give up just because the statute is dense or hard to parse.” She did caution, however, that “not just anything goes.”

Veteran court watchers believe preserving the Chevron deference will take a miracle. But miracles do happen. History teaches that Supreme Court justices have tended to become more liberal over their time on the high court bench. Republican-appointed  Justices Blackmun, Stevens, and Souter “underwent wholesale ideological reversals, drifting from center-right to liberal positions.” Not all moves have been as drastic.

Justices O’Connor and Kennedy moderated their conservative judicial philosophies to become swing votes. Justice Kennedy cast the deciding vote in Massachusetts v EPA, which required the Agency to regulate greenhouse gas emissions should it find they endanger the public’s health and welfare. Joining Kennedy were Justices Stevens and Souter, Ginsburg, and Breyer.

As the cameras focused on the faces of the Supreme Court Justices during President Biden’s State of the Union Message, I wondered what they were thinking. Did the ovations and catcalling confirm for them the deep philosophical divisions and enmity scarring America’s political landscape? Are they aware of how unrealistic it is to expect Congress—a legislative body that for most of the 21^st century has found it nearly impossible to perform its most basic function—funding the federal government—as provided by the Constitution?

There’s a strong correlation between mistrust in government and the rise of authoritarian regimes. Thinking it can’t happen here is naive. An American Values Survey by the Public Religion Research Institute (PRRI) showed that 38 percent of those surveyed believed “we need a leader who is willing to break some rules if that’s what it takes to set things right.”

Every time elected leaders cast Supreme Court decisions as mere suggestions and the rule of law as optional, it undermines the foundation of American democracy. Jessica Levenson, an LMU Loyola Law School professor, reminds us that the high court “doesn’t have an army it sends to enforce its decisions.” Neither does it need one—at least for as long as We, the People, believe in our governing institutions. This belief has proven strong enough to sustain the Court even “when we vehemently disagree with it.”

However, as the professor points out, legitimacy is lost when it’s believed the courts are “just packed with political actors, not judges.” A complete reversal of Chevron will lead to chaos in the administrative state, under any circumstance, as new boundaries and precedents are established—something that will take years to settle.

In the final analysis, I think Justice Barrett said it all in her concurring opinion in the Colorado ballot case: The Court has settled a politically charged issue in the volatile season of a Presidential election...in this circumstance, writings on the Court should turn the national temperature down, not up.”

How much more chaotic would the administrative state be if the herring cases were accompanied by precedent-bending decisions in Jarkesy and the recent challenges to the NLRB? In politics, timing is everything. What about Supreme Court decisions? Taking smaller measured steps would do much to coral chaos in this election year 2024.

The ultimate question SCOTUS must answer is this:

Is there ever a time when the health of democracy trumps judicial philosophies and precedents?

If not now, when?