Justice Elena Kagan photographed in bad company - with "Coke Can" Clarence and Circus Ringmaster and Clown Roberts.
By Joan McCarter
Daily Kos Staff
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The Supreme Court overturned decades of precedent on Friday that said courts should largely defer to federal agencies when it comes to interpreting and enforcing ambiguous laws written by Congress. It ruled 6-3 in Relentless v. Department of Commerce and 6-2 in Loper Bright Enterprises v. Raimondo (Justice Ketanji Brown Jackson recused), effectively seizing those agencies’ power for themselves.
This is the conservative court once again ruling itself king—above Congress, above the executive branch—in public life.
In her Loper dissent, Justice Elena Kagan blasted the court’s majority in no uncertain terms for both the power grab and its continued trashing of precedent. “Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill,” Kagan explained. “And it would usually prefer that actor to be the responsible agency, not a court.”
For good reason. Just yesterday Justice Neil Gorsuch displayed his expertise in clean air regulation, mixing up “nitrous oxide” (laughing gas) and pollution generating "nitrogen oxides.” Five times. And now these people will hold final say over ensuring our water, air, workplaces, food, and drugs are safe.
These two decisions also follow the conservatives’ decision on Wednesday in Snyder v. U.S., which declared it legal to bribe public officials as long as the reward comes after the official does what the briber wants, instead of before. As Jackson wrote in her dissent, it’s an interpretation of the law “is one only today’s Court could love.”
Combined with another ruling from Thursday in Securities and Exchange Commission v. Jarkesy, which threatens decades-old enforcement powers in federal agencies and hands that power to the courts, this court majority is the most radical—and corrupt—in generations.
In her Loper dissent, Kagan continued to explain what is so dangerous in Friday’s rulings:
Today, the Court flips the script: It is now ‘the courts (rather than the agency)’ that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. [...]In one fell swoop, 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. It defends that move as one (suddenly) required by the (nearly 80-year-old) Administrative Procedure Act. But the Act makes no such demand. Today’s decision is not one Congress directed. It is entirely the majority’s choice. [...]
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.
Kagan also warns that “it is impossible to pretend that today’s decision is a one-off, in either its treatment of agencies or its treatment of precedent.”
As Eli Mystal, justice correspondent for The Nation, commented, “Conservatives have now completed their generational goals of overturning Abortion, Affirmative Action, and Chevron. If y'all don't think Obergefell and gay marriage is next on the chopping block, you must read the New York Times.”
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