To appreciate that transformation’s full dimension, consider the robust conservative wish list that greeted the new chief justice 18 years ago: Overturn Roe v. Wade. Reinterpret the Second Amendment to make private gun ownership a constitutional right. Eliminate race-based affirmative action in university admissions. Elevate the place of religion across the legal landscape. Curb the regulatory power of federal agencies.
These goals were hardly new, but to conservatives’ bewilderment and frustration, the court under the previous chief justice, the undeniably conservative William Rehnquist, failed to accomplish a single one of them. In fact, to any conservative longing for change, the situation in 2005 must have appeared grim indeed. Not only had the Rehnquist court reaffirmed the right to abortion in the 1992 Casey decision; in 2000 it overturned a state ban on so-called partial-birth abortion, a law aimed at enlisting the court in a graphic anti-abortion narrative.
On gun rights, the court was maintaining a decades-long silence despite Justice Clarence Thomas’s public call in 1997 to revisit the Second Amendment and the George W. Bush administration’s startling advice to the court five years later that the federal government was ready, for the first time, to support the individual-right position on the ownership of firearms when an appropriate case arrived.
The Grutter decision in 2003, upholding affirmative action in admission to the University of Michigan’s law school, appeared to put racially conscious admissions decisions on a solid footing, at least for 25 more years.
On religion, a 1990 decision written by Justice Antonin Scalia held that the First Amendment’s free exercise clause ordinarily did not provide a religious opt out from compliance with laws that applied to everyone. And one of Chief Justice Rehnquist’s last major opinions, Locke v. Davey, called for maintaining a cautious “play in the joints” between free exercise and the First Amendment’s other religion clause, the establishment clause. (“In other words,” as the court put it, “there are some state actions permitted by the establishment clause but not required by the free exercise clause.”) The decision rejected the claim that a state offering scholarships for postsecondary education had to cover study for the ministry as well. There is little doubt that the same case would come out differently today.
Finally, actions of the federal agencies that make up the administrative state were largely insulated from judicial review based on the court’s 1984 Chevron decision, requiring courts to defer to an agency’s plausible interpretation of its own authority if Congress had failed to speak precisely to the question at hand.
That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.
It’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”
Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.
But how to tell a major question from an ordinary one? No surprise there: The court itself will decide. While the ratio of major questions to ordinary questions of administrative law remains to be seen, it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.
Justice Neil Gorsuch was candid about this in a concurring opinion last year when the court limited the Environmental Protection Agency’s ability to regulate emissions from power plants. The major questions doctrine, he explained, “applies when an agency claims the power to resolve a matter of great ‘political significance.’” What is a better indicator of political significance than sustained conservative backlash? Last year’s environmental case set the stage for the court’s June 30 decision overturning the Biden administration’s student-loan forgiveness program. (...)
My focus here on what these past 18 years have achieved has been on the court itself. But of course, the Supreme Court doesn’t stand alone. Powerful social and political movements swirl around it, carefully cultivating cases and serving them up to justices who themselves were propelled to their positions of great power by those movements. The Supreme Court now is this country’s ultimate political prize. That may not be apparent on a day-to-day or even a term-by-term basis. But from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.
These goals were hardly new, but to conservatives’ bewilderment and frustration, the court under the previous chief justice, the undeniably conservative William Rehnquist, failed to accomplish a single one of them. In fact, to any conservative longing for change, the situation in 2005 must have appeared grim indeed. Not only had the Rehnquist court reaffirmed the right to abortion in the 1992 Casey decision; in 2000 it overturned a state ban on so-called partial-birth abortion, a law aimed at enlisting the court in a graphic anti-abortion narrative.
On gun rights, the court was maintaining a decades-long silence despite Justice Clarence Thomas’s public call in 1997 to revisit the Second Amendment and the George W. Bush administration’s startling advice to the court five years later that the federal government was ready, for the first time, to support the individual-right position on the ownership of firearms when an appropriate case arrived.
The Grutter decision in 2003, upholding affirmative action in admission to the University of Michigan’s law school, appeared to put racially conscious admissions decisions on a solid footing, at least for 25 more years.
On religion, a 1990 decision written by Justice Antonin Scalia held that the First Amendment’s free exercise clause ordinarily did not provide a religious opt out from compliance with laws that applied to everyone. And one of Chief Justice Rehnquist’s last major opinions, Locke v. Davey, called for maintaining a cautious “play in the joints” between free exercise and the First Amendment’s other religion clause, the establishment clause. (“In other words,” as the court put it, “there are some state actions permitted by the establishment clause but not required by the free exercise clause.”) The decision rejected the claim that a state offering scholarships for postsecondary education had to cover study for the ministry as well. There is little doubt that the same case would come out differently today.
Finally, actions of the federal agencies that make up the administrative state were largely insulated from judicial review based on the court’s 1984 Chevron decision, requiring courts to defer to an agency’s plausible interpretation of its own authority if Congress had failed to speak precisely to the question at hand.
That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.
It’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”
Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.
But how to tell a major question from an ordinary one? No surprise there: The court itself will decide. While the ratio of major questions to ordinary questions of administrative law remains to be seen, it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.
Justice Neil Gorsuch was candid about this in a concurring opinion last year when the court limited the Environmental Protection Agency’s ability to regulate emissions from power plants. The major questions doctrine, he explained, “applies when an agency claims the power to resolve a matter of great ‘political significance.’” What is a better indicator of political significance than sustained conservative backlash? Last year’s environmental case set the stage for the court’s June 30 decision overturning the Biden administration’s student-loan forgiveness program. (...)
My focus here on what these past 18 years have achieved has been on the court itself. But of course, the Supreme Court doesn’t stand alone. Powerful social and political movements swirl around it, carefully cultivating cases and serving them up to justices who themselves were propelled to their positions of great power by those movements. The Supreme Court now is this country’s ultimate political prize. That may not be apparent on a day-to-day or even a term-by-term basis. But from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.
by Linda Greenhouse, NY Times | Read more:
Image: Matt Rota
[ed. Worth a full read.]
