Thomas Geoghegan ,wwe aige sex video October 17, 2024

When the Courts Rule

The right hopes for a new era of “legislating from the bench” Library of Congress/The Baffler

The Supreme Court ended its term this summer with several cases that generated a few days’ worth of headlines, sent some shockwaves through the legal system, and then were overtaken by the fast-moving events in the 2024 presidential race. Yet there’s an obvious way the Court’s rulings have raised the stakes of the presidential election in a way that has probably not sunk in for most voters. It’s not just that the Court ruled that a president is effectively above the law and will now be empowered to go on a crime spree—as long as the crimes relate to “official acts.” Along with that, the Court issued three major rulings potentially reducing the power of federal regulatory agencies. The result of these rulings is to effectively take power from the other branches, both Congress and the Executive, and to make the federal judiciary the most powerful branch. Thus, it will make even more of a difference in coming years whether the federal courts are packed by a Republican president and Senate with a new wave of right-wing judges, as they will be under the kind of leadership that gave us Clarence Thomas, Samuel Alito, Brett Kavanaugh, et al.

At first glance, the current Supreme Court conservative majority may seem at odds with itself. Have they vastly increased the power of the president by ruling in Trump v. the United Statesthat a president can’t be prosecuted for breaking the law while in the White House? Yes. Have they weakened agencies presided over by the chief executive, such as the Environmental Protection Agency or the Security and Exchange Commission? Also yes. But the end result is to make it more likely a president can get away with corrupt actions while simultaneously making it more difficult for executive agencies to interpret the law in ways big business objects to. 

The three major “administrative state” rulings would displace Congress as the “decider” when it comes to which agency regulations do or do not carry out the congressional will. If an agency action is OK with Congress—which funds the agency every year—it is unclear why it should matter to the Court. But of course, the idea here is to challenge the power of the administrative state. And the way the Court envisions doing that is by inserting court decision-making into regulatory controversies, making regulations less “law like,” that is, more arbitrary and unpredictable—because in the new system it is unclear how courts will be making decisions.

Take a look at Loper Bright Enterprises v. Raimondo.In that case the Court reversed its famous 1984 decision in NRDC v. Chevron, which held that the Court would defer to the view of the EPA—and other agencies—as to the scope of the agency’s legal authority. That decision in turn replaced a much older case, Skidmore v. Swift & Co., in which the Court’s rule was that the agency should act consistently and not unsettle previous interpretations. Chevron was hardly any gift to the left. While adopted unanimously, it came in the Reagan era of deregulation, when agencies were taking a narrow view of their authority, or giving up authority that might be theirs. The Natural Resources Defense Council’s challenge was driven by the belief the EPA was not doing enough in its air pollution rules, but the Court concluded that was for EPA to say, not the courts. The Chevronruling emphasized that judges are neither “experts in the field” nor “part of either political branch of the government.” That’s what became known as “Chevron deference.”

Yet Chevron at least kept the Court for a while from interfering without any standards and picking actions it liked and did not. It let the Democrats in office pick their interpretations, and the Republicans pick theirs. Chevron fell out of favor with the far right, as neoliberalism fell out of favor with the Democrats, slowly under Obama and then all at once under Biden. Federal regulation was back. Even by the end of the Obama administration, a right-wing Court itself was no longer following Chevron, or citing it. As one scholar put it, the Supreme Court was “ghosting” Chevron long before getting rid of it. But even if Chevronwas gone up there in the cases decided by the gods, it still had a lot of life in the lower courts. As noted by some scholars, the lower courts still liked to cite it. This gets to the second big reason why the Court originally adopted Chevron; to close, in the oft-used cliché, the floodgates of litigation. The idea was judicial housekeeping: to make it easy and efficient for federal courts to stay out of complicated questions of statutory interpretation, and over two decades toss out so many cases at the bare beginning or even the pleading stage. Of course, the Supreme Court has no need to worry about increasing its docket—it refuses to grant review of almost all the cases for which businesses bring petitions of certiorari. The justices will still be free to go on spending their summers in Europe. But the floodgates are opening for the lower courts. In that sense, Chevron was not a challenge to the administrative state—but now we are putting another class of administrators in charge, and they have Article III appointments, nominated by the president and confirmed by the Senate to lifetime tenure.

Federal judges already handle many hundreds of cases every year arising under federal law, often administrative law. As a lawyer, I have spent most of fifty years sitting in federal courtrooms—at least before Covid—to give a status report or argue a motion. In the old days, before Zoom ended all that needless waiting, I learned over and over that every type of federal question came up. So it is annoying to hear justices complain about the “administrative state,” as the federal court system itself is the real administrative state, or even better, the true deep state, staffed by federal judges who sit like proconsuls all over the land. Claiming judicial modesty, the Court is seeking power for this deep state, at the expense of Congress and the president.

At least three bad things will now follow:

• Everything is up for grabs. Everyone will challenge every interpretation, as no one knows any longer what is valid. After all, Congress legislated for years against the backdrop of Chevron—leaving hard questions to agencies—to which courts will no longer defer. But it leaves a mess when a settled rule like Chevronis suddenly gone. Lest one miss the point that everything is up for grabs, the Court also decided that those subject to regulation—largely business groups—can challenge long-standing agency interpretations despite a six-year statute of limitations under the Administrative Procedure Act. The Court decided, in Corner Post v. Board of Governors of Federal Reserve System, that the clock for a challenge runs not from the date that a long-settled interpretation went in effect but from the time it is applied to a particular party. Everyone gets a shot to overturn a regulation that may be a hundred years old. It may not be too late to challenge the Nixon administration or even FDR from going off the gold standard.

• It would be nice if something like a settled rule had replaced the rule of Chevron deference, but now there is no way of deciding, often for years to come, as cases move through the courts, what agencies can do. Yes, there is “just statutory interpretation,” whatever that means. It is clear enough what it means when the text is plain, but those cases were never subject to deference in the first place. Chevrondeference never meant that an agency could ignore the plain meaning, the actual text of the law. The problem is that years of Chevrondeference helped give an incentive to statutory ambiguity, which drafters might have tried harder to avoid had Chevronnot been in place. When the text is not plain, there are a dozen, or two dozen, hoary maxims of statutory interpretation, often in Latin, which point in different ways.

• The Court majority’s interventions seem likely to be more and more arbitrary. Beyond the plain meaning rule, there is a plethora of possible canons of statutory interpretations, which lead to conflicting results.  While the judges are free to pick or chose their favorite canons, it leaves nothing but their own political preferences as the basis for a decision. And even if the canons lock in the majority, these justices have adopted a new rule of interpretation, not a traditional canon, called the “major question” doctrine. Introduced for the first time in West Virginia v. EPA, decided in 2023, the conservative majority cited this new doctrine, created-from-judicial-scratch, to stop the EPA from forcing utilities to go solar. Even if it is arguably within the authority of the EPA to keep us all from being boiled alive, doing so raised “a major question,” and required a specific sign-off by Congress. But at the time of the Court’s decision, the Congress had failed to rouse itself to reverse the EPA action and presumably had not regarded it as that “major” a question.  Nor is there any rule for deciding what is, or is not, a major question. The often Delphic canons of statutory interpretation often point in both directions. Without some deference, everything turns into a political gut check by a judge, or three of them in the Court of Appeals, or some split of the nine in the Supreme Court.

So what does this mean? It means that if the Democrats run the agencies, the Court will reverse the EPA, the DOL, the FDA—agencies that business challenge—and probably leave alone the INS, whose challenges only come from the helpless and the poor. And if these are Trump agencies, it means the Court will uphold flip-flops in interpretations that one might regard as settled a dozen years ago.

The last slapdown of agency authority was Jarkesy v. SEC, also handed down with Loper Bright and Corner Post in the last week of the term. Here the conservative majority, six to three, denies the SEC the power to impose fines for stock fraud, and requires a jury trial, because a fraud claim decided by the SEC is, according to this Court, like a common law claim that could have been brought in 1791 when the Seventh Amendment right to a jury trial for common law claims took effect. Perhaps this idea came out of a night of drinking at the Federalist Society, but it seems preposterous in the light of day. There was no SEC in 1791, or federal securities law, or even Wall Street, and these are not common law claims that were in the state courts at the time but modern statutory claims with monetary remedies, that no jury would ever have resolved under the law back then. ?The decision here also depends on parsing the difference between “law” and “equity” claims and projecting that difference into our own different legal system, which is no longer used to thinking in these old categories. It is an exercise in counter-factual thinking comparable to what now goes on in the interpretation of the Second Amendment. This is a scholastic exercise that might have caused a monk to blush even in Middle Ages. This last decision is a limit not just on the SEC but the power of Congress, not so much an attack on the administrative state but on any kind of state power to address an economy that has advanced from George Washington’s day. The irony is that under either the Democrats or Republicans in control of the SEC, most businesspeople who are facing a claim of financial wrongdoing, however complicated, would be much worse off with a jury operating by gut instinct than by an agency following published rules.

But this is Trump jurisprudence—and the purpose of Trumpism is to create chaos. The Court majority seems to believe this is what the rule of law should do. Is there any way to stop the chaos in the years ahead? It won’t be by appointing more conservative Federalist Society judges.

In the unlikely event that the Democrats win the White House andgain filibuster-free control of Congress, the chaos could be countered. Yes, it’s true that Congress could write better, clearer laws, and maybe will with the end of Chevron. Congress could also write in a law that follows Skidmore, the case that Chevron displaced, and require the courts to defer to long-settled consistent interpretations of agency authority. It could also put in sweeping express delegations of authority to the agencies, though that will not help if the Court disallows such delegations to decide “major questions.” Or, Congress could remove the Article III constitutional jurisdiction of the Court to hear certain challenges at all, not the happiest of ideas, but perhaps the only way to stop the Court from carpet-bombing the EPA.

But there is one other possibility—the president is now free to ignore the Court and engage in martial-law type control, free of any criminal liability. In some apocalyptic near future, such as the submergence of Florida like the continent Atlantis, or a flight from states that catch fire, or just a mere 1930s style depression brought on by high tariffs, “act of state” doctrine, set out in Trump v. U.S, could allow the president to ignore what the courts say. It could become the charter for a new type of administrative state by executive decree. What if the president decided to use Trump v. U.S. to reject the new judicial supremacy? The election may decide whether in the years ahead this “what if” comes to be.