SCOTUS Wants Theocratic Courts to Rule the Country

“One side or the other is going to win.”

That’s what Justice Samuel Alito told journalist Lauren Windsor last month at a black-tie event at the Supreme Court Historical Society in Washington, D.C.

“It’s difficult for the two sides to live peacefully together since there are differences about fundamental things that really can’t be compromised,” Alito continued.

We all know the issues that matter to Alito—the issues that can’t be compromised on. Hell, his wife Martha-Ann made it clear to us what they despise: having to stare at a Pride flag that sits across the lagoon from their summer home where their “Appeal to Heaven” Christian nationalist flag flies. So you can bet your sweet cheeks that for Alito, there will be no compromise when it comes to abortion. Or to trans women in women’s sports. Or to bathrooms. Or to gender-affirming care. Or to disability accommodations. Or to environmental regulations. He will happily force the most vulnerable people in this country to place their neck right under Christian nationalism’s steel-toed boot.

So the fact that last month, the Supreme Court anointed itself the overlord of the entire administrative state by overruling the critical 1984 case Chevron v. Natural Resources Defense Council should induce panic in everyone who thinks agency experts should be the ones to resolve ambiguities in Congressional statutes enacted to create those very agencies.

Because despite the keening from conservatives about how awful the Chevron doctrine is, that’s all Chevron did: It laid out the simple rule that in the case of an ambiguous statute relating to how a federal agency does its business, it’s the federal agency—not courts—that should resolve the ambiguity, because agencies have expertise in the subject matter that courts don’t.

For 40 years, Chevron required a two-part framework for reviewing an agency’s interpretation of a statute that Congress charged it with administering. First, a court must exhaust all the ordinary tools courts use when they try to interpret a statute. These tools include looking at the plain language of the statute and divining Congress’ intent by examining legislative history. If, after this rigorous inquiry, the statute is still ambiguous, the Chevron doctrine then requires courts to back off and let the agency interpret the statute.

But this is no longer the case. According to Chief Justice John Roberts’ majority opinion in Loper Bright Enterprises v. Raimondo, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

Not according to Justice Elena Kagan, who ripped into Roberts in her dissent.

Kagan listed example after example of the types of statutory ambiguities that courts will now be required to parse through. “The Food and Drug Administration (FDA) regulates ‘biological products,’ including ‘proteins,’” Kagan wrote. “When does an alpha amino acid polymer qualify as such a ‘protein’?”

Or take the Endangered Species Act, for example. The U.S. Fish and Wildlife Service “must designate endangered ‘vertebrate fish or wildlife’ species, including ‘distinct population segments of those species,’” she wrote.

“But what makes one population segment ‘distinct’ from another?” Kagan continued. “Must the Service treat the Washington State population of western gray squirrels as ‘distinct’ because it is geographically separated from other western gray squirrels? Or can the Service take into account that the genetic makeup of the Washington population does not differ markedly from the rest.”

These are questions that should be answered by the FDA and Fish and Wildlife Services, respectively.

Not John Roberts. And not Samuel Alito.

But Chevron is dead now. If a particular statute isn’t clear, experts—who are familiar with the subject matter of a statute in ways that courts cannot possibly be—are no longer going to be the people who determine how that statute should be interpreted.

As Kagan noted in her dissent referring back to her FDA example, she doesn’t know what an alpha amino acid polymer is. So why should she be the one to determine how the FDA should regulate them? Or when it comes to determining which squirrel population is distinct from another and therefore warrants protection, courts could maybe, as Kagan wrote, “muddle through that issue and announce a result.” But it makes more sense for the scientists at the Fish and Wildlife Service to do it, since they are the squirrel experts.

Overruling Chevron was a long time coming. Conservatives have loathed the administrative state for a while now. It’s a bureaucracy whose many tentacles reach into every aspect of our lives. That in and of itself is not a problem for conservatives since, despite claiming they prefer a small government that leaves its citizens to do whatever they want, they still want the government to control the reproductive autonomy of every person in this country capable of becoming pregnant. But generally, conservatives have viewed the administrative state as too subject to the political whims of the electorate who have a hand in agency appointments, through the representatives they elect to appoint various agency heads. Conservatives would rather maintain a stranglehold on every federal agency all the time—to the extent it doesn’t want to end those agencies’ existence—even when Republicans don’t have control of Congress or the White House.

This wasn’t always true. Once upon a time, conservatives feigned concern over liberal activist judges and viewed the Chevron doctrine as a way to make sure that those activist judges didn’t become policymakers. But then 2016 happened. And by the time Donald Trump was finished reshaping the federal judiciary in the image of Leonard Leo and the Federalist Society, agency expertise suddenly became insufficient when it comes to interpreting ambiguities in a statute.

Over the last half decade, the Supreme Court has used the available arrows in its quiver to curtail agency power and hand big wins to corporations so that corporations can force you to breathe polluted air—Environmental Protection Agency regulations be damned—or strip you of your right to contraception coverage in your health insurance plans, never mind what U.S. Department of Health and Human Services regulations require.

One such arrow is the major questions doctrine, which says that courts can reject agency interpretation of ambiguous statutes on “major questions” unless Congress has clearly authorized the court to accept the agency’s interpretation.

But what does that even mean? What’s a major question? I’ll tell you: It’s anything of national political or economic significance. And if that sounds impossibly vague to you, well, that’s the point. The major questions doctrine has allowed the Supreme Court to declare anything a major question and then take interpretive power out of federal agencies’ hands and put it in its own pocket. (In two cases over the last five years involving COVID-19 regulations, the Supreme Court has deployed the major questions doctrine to avoid letting the Centers for Disease Control and Prevention impose an eviction moratorium during lockdown and to avoid letting the Occupational Safety and Health Administration require their employees to be tested and vaccinated for COVID-19.) In this way, the Supreme Court has been a reliable ally of corporations who oppose regulatory restrictions and an ally of conservatives writ large who have been champing at the bit to gut the administrative state.

But the Supreme Court has no more need for the major questions doctrine. In the largest power grab since Marbury v. Madison—the 1803 case in which the justices up and decided for themselves that they were going to review and strike down acts of Congress—the Supreme Court has just arrogated to itself the power to interpret statutes in whatever way it wants, as long as it can find some ambiguity in the statute.

Congress has just been fleeced.

Setting aside concerns about clean water, breathable air, and safe drugs, Loper Bright Enterprises is a stunning ruling that will have dramatic consequences for the same civil and human rights that conservatives have been gunning for.

Many of the statutes that relate to the issues most central to reproductive justice are ambiguous. When Title VII was enacted, gender identity wasn’t a consideration. Neither was sexual orientation. Same with Title IX. But through guidance documents and regulations, the Equal Employment Opportunity Commission and Department of Education have interpreted these statutes to protect, for example, trans people from being fired from their jobs for being trans. Or to protect trans students’ right to use the bathroom that aligns with their gender identity.

When it comes to trans kids, both the Obama and Biden administrations have done a lot of forward-thinking rulemaking. That can now all be undone by Alito and his five cohorts on the bench. As Elie Mystal put it in the Nation:

The legality of every new financial product, workplace safety standard, abortion pill or contraceptive, will not be up to the elected representatives who crafted the law or the experts who were appointed by the president to implement it, but will come down to Gorsuch or what five Supreme Court justices think the law should be. That’s not a democracy, that’s a juristocracy, where our votes are suggestions until the judicial machine tells us what laws we’re allowed to have.

Indeed.

And when it comes to certain loudmouth justices who believe, in their own words, “one side or the other is going to win,” it becomes clear that there is a very real danger of Supreme Court justices finding ambiguity in any statute they want to now that they have made it their responsibility—and only their responsibility—to sort out those ambiguities, rather than allowing agency experts to do so.

So Sam Alito? This is your time. I can’t wait for you to interpret Title IX to require schoolteachers to deadname their students.

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