Seems to me that the current court gives no weight to precedence, well, if it goes against their personal politics.
The power of experts
Now that abortion is restricted and affirmative action is hobbled, the conservative legal movement has set its sights on a third precedent:
Chevron v. Natural Resources Defense Council.
The 1984 decision, one of the most cited in American law but largely unknown to the public, bolstered the power of executive agencies that regulate the environment, the marketplace, the work force, the airwaves and countless other aspects of modern life. Overturning it has been a key goal of the right and is part of a project to demolish the “administrative state.”
A decision rejecting Chevron would threaten regulations covering — just for starters — health care, consumer safety, government benefit programs and climate change. (My colleague Charlie Savage has written more
on the possible implications.)
After three and a half hours of lively arguments on Wednesday that appeared to divide the justices along the usual lines, it seemed that the court’s conservative majority was prepared to limit or even eliminate the precedent.
Chevron — and bear with me here, this will hurt only for a minute — established the principle that courts must defer to agencies’ reasonable interpretations of ambiguous statutes. The theory is that agencies have more expertise than judges, are more accountable to voters and are better able to establish uniform national policies. “Judges are not experts in the field, and are not part of either political branch of the government,” Justice John Paul Stevens wrote in 1984 for a unanimous court (though three of its justices recused for reasons of health or financial conflict). Stevens
later said of the opinion, which was easily his most influential, that it was “simply a restatement of existing law.”
The decision was not much noted when it was issued. “If Chevron amounted to a revolution, it seems almost everyone missed it,” Justice Neil Gorsuch, the harshest critic of the doctrine on the current court,
wrote in 2022, saying that courts had read it too broadly.
At first, conservatives believed that empowering agencies would constrain liberal judges. So the Reagan administration, which had interpreted the Clean Air Act to allow looser regulations of emissions, celebrated the decision.
Justice Stevens, rejecting a challenge from environmental groups, wrote that the Environmental Protection Agency’s reading of the statute was “a reasonable construction” that was “entitled to deference.”
The head of the E.P.A. when the regulation was issued? Anne Gorsuch, Justice Gorsuch’s mother.
Most surprisingly, given its current bad odor with the right, Chevron was at least initially championed, celebrated and elevated by Justice Antonin Scalia, a revered conservative figure who
died in 2016. “In the long run Chevron will endure and be given its full scope,” he wrote in
a law review article in 1989, adding that this was so “because it more accurately reflects the reality of government.”
What, then, accounts for the decision’s place on the conservative hit list? After all, as the case itself demonstrates, it requires deference to agency interpretations under both Republican and Democratic administrations.
The answers are practical, cultural and philosophical. Business groups on the whole remain hostile to regulation. Many conservatives have come to believe that executive agencies are dominated by liberals under both parties’ administrations — the shorthand for this critique is “the deep state.” Some on the right have become hostile to the very idea of expertise.
But the attack on Chevron on Wednesday was mostly fought on the terrain of the separation of powers, with conservative justices insisting that courts rather than agencies must determine the meaning of ambiguous statutes.
Still, Justice Samuel Alito, who is likely to vote to overrule the decision, expressed puzzlement on Wednesday about its history.
“Chevron was initially popular,” he said. It was seen as “an improvement because it would take judges out of the business of making what were essentially policy decisions. Now, were they wrong then?”