Elena Kagan Is Horrified by What the Supreme Court Just Did. You Should Be Too. (2024)

Jurisprudence

By Mark Joseph Stern

Elena Kagan Is Horrified by What the Supreme Court Just Did. You Should Be Too. (1)

This is part ofOpinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. AlongsideAmicus, we kicked things off this year by explainingHow Originalism Ate the Law. The best way to support our work is by joiningSlate Plus. (If you are already a member, consider adonationormerch!)

The Supreme Court fundamentally altered the way that our federal government functions on Friday, transferring an almost unimaginable amount of power from the executive branch to the federal judiciary. By a 6–3 vote, the conservative supermajority overruled Chevron v. NRDC, wiping out four decades of precedent that required unelected judges to defer to the expert judgment of federal agencies. The ruling is extraordinary in every way—a massive aggrandizement of judicial power based solely on the majority’s own irritation with existing limits on its authority. After Friday, virtually every decision an agency makes will be subject to a free-floating veto by federal judges with zero expertise or accountability to the people. All at once, SCOTUS has undermined Congress’ ability to enact effective legislation capable of addressing evolving problems and sabotaged the executive branch’s ability to apply those laws to the facts on the ground. It is one of the most far-reaching and disruptive rulings in the history of the court.

The facts of Friday’s decision, Loper Bright Enterprises v. Raimondo, matter far less that the legal holding. But they are worth dwelling on because they illustrate the conservative supermajority’s hunger to reach its conclusion by any means necessary. Loper Bright challenged a program, enacted under the Trump administration, that required the fishing industry to help cover the costs of federal compliance monitors on their boats. The plaintiffs argued that federal law did not clearly authorize the government to seek cost-sharing from fishermen. The Biden administration shut down this program and refunded every cent back to the industry, so there is no live controversy anymore. Nonetheless, the Supreme Court took up the case as a vehicle to target Chevron, a landmark 1984 decision.

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In Chevron, the court unanimously announced an important principle of law that governed the nation until Friday: When a federal statute is ambiguous, courts should defer to an agency’s reasonable interpretation of it. Why? Congress delegates countless important calls to agencies—directing the EPA, for instance, to limit harmful benzene emissions, rather than providing the precise formula to determine what level of benzene emissions is harmful to humans. Congress writes statutes broadly because it expects these agencies to respond to new facts and adjust their enforcement accordingly.

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Crucially, these agencies are staffed with experts who have deep knowledge and experience in the area where Congress seeks to regulate. Such experts can understand and execute regulations more proficiently than federal judges, who are, at best, dilettantes in most fields of regulation. For example, an EPA scientist is unlikely to confuse nitrous oxide (laughing gas) with nitrogen oxide (a smog-causing emission), as Justice Neil Gorsuch did in a Thursday opinion blocking an EPA rule. Moreover, most agencies are staffed with political appointees whom the president can appoint and remove at will. That makes them far more accountable to the citizenry than federal judges, who are guaranteed life tenure no matter how badly they butcher the law.

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Since 1984, federal courts have applied Chevron in about 18,000 decisions in every conceivable area of the law: energy policy, education, food and drug safety, labor, the environment, consumer protection, finance, health care, housing, law enforcement—the list is pretty much endless. It has become the background principle against which Congress enacts all legislation. That all ends now. Chief Justice John Roberts’ opinion in Loper Bright declared that Chevron is unmoored to any law, “fundamentally misguided” and “unworkable,” creating an “eternal fog of uncertainty.” He dismissed it as “a judicial invention that required judges to disregard their statutory duties.” From here on out, courts must apply their “independent judgment” rather than deferring to federal agencies when Congress’ handiwork is ambiguous. And yet Roberts also tried to forestall a flood of challenges to past rulings rooted in Chevron, adding that courts require “special justification” to overrule these thousands and thousands of decisions. It would require immense naivety to believe that hard-right lower courts will abide by this passing suggestion.

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Justice Elena Kagan’s dissent, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, is a masterwork of alarm and despair. “A rule of judicial humility,” she wrote, “gives way to a rule of judicial hubris.” The justice pulled no punches, bemoaning the majority’s reckless arrogance with outrage and contempt. “In one fell swoop,” the justice explained, “the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”

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The majority, Kagan continued, made “a laughing stock” of stare decisis, or respect for precedent:

It barely tries to advance the usual factors this Court invokes for overruling precedent. Its justification comes down, in the end, to this: courts must have more say over regulation—over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on. A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.

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Kagan’s dissent illustrated the stability of Chevron in practice when courts apply it in good faith to the panoply of technical questions that arise when agencies apply a broadly worded mandate to a specific problem. As to Roberts’ claim that Chevron is a “decaying husk” because the Supreme Court has not applied it in eight years, she lobbed a strikingly candid critique at the majority’s tactics. “The majority’s argument is a bootstrap,” Kagan wrote. The court has avoided applying Chevron since 2016 only

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because it has been preparing to overrule Chevron since around that time. That kind of self-help on the way to reversing precedent has become almost routine at this court. Stop applying a decision where one should; throw some gratuitous criticisms into a couple of opinions; issue a few separate writings questioning the decision’s premises; give the whole process a few years … and voila!—you have a justification for overruling the decision.

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This “overruling-through-enfeeblement technique,” the justice wrote, “mocked stare decisis.”
A brilliant dissent, of course, is still a dissent: a largely futile cry of sorrow and anger that reflects the liberal bloc’s near-total loss of influence at this Supreme Court. Even Kagan’s most biting prose cannot stop what will happen next. The majority has shot a missile at the agencies that run our government, from the Department of Commerce and the EPA to the Department of Labor, the Food and Drug Administration, the Consumer Financial Protection Bureau, and every other bureau that protects Americans from harm every day. Rather than strike down one specific law, the conservative supermajority has hobbled the functioning of hundreds of agencies all at once. The decision will have a wildly outsized impact on Democratic presidents, who typically seek to beef up regulations, while favoring Republican presidents who enter office with a deregulatory agenda. And it leaves Congress in the lurch, denying lawmakers the ability to write laws the way they have for more than a century: empowering agencies to tackle threats to the general welfare through broad legislation that lets experts fill in the gaps.

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Take a step back and consider how radically—and underhandedly—this Supreme Court is reshaping modern governance. By killing Chevron just one day after undermining agencies’ enforcement actions, the conservative supermajority is kneecapping the administrative state. It shares that goal with Steve Bannon, Donald Trump, and the far-right activists behind Project 2025. The Supreme Court is imposing a MAGA vision of the law on America, giving unelected judges near-unfathomable power to override the policy choices of the democratic branches. Through rulings dressed up in legalese, it strips power from the citizens and their elected representatives, establishing a monarchical judiciary with no known limits on its own authority. Anyone who cares about government of the people, by the people, for the people should share Kagan’s horror at what this court has wrought and what comes next.

  • Jurisprudence
  • Neil Gorsuch
  • Supreme Court
  • John Roberts
  • Elena Kagan
  • Opinionpalooza 2024

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Elena Kagan Is Horrified by What the Supreme Court Just Did. You Should Be Too. (2024)
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