SCOTUS’ assault on Chevron doctrine is an assault on everyday people, carried out on behalf of corporations and the Court’s wealthy benefactors.
This article originally appeared in Common Dreams.
Last month, the Supreme Court broke with four decades of precedent and overturned Chevron deference, a cornerstone of administrative law that has been cited by federal courts over 18,000 times. The 6-3 ruling, handed down on party lines in the cases Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, eliminated a judicial doctrine that had long instructed federal courts to defer to federal agencies’ interpretations of ambiguous or unclear laws passed by Congress, rather than have judges act as regulatory policy-makers.
Chevron deference was established in the 1984 Supreme Court case Chevron v. Natural Resources Defense Council for two main reasons. First, because federal agencies are staffed with career civil servants and subject matter experts like scientists, researchers, and data analysts who understand the nitty-gritty details of regulatory policy-making far better than any given judge. Second was the importance of democratic accountability and the separation of powers, with Justice John Paul Stevens writing in the Chevron decision that “federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do”.
In her blistering dissent for Loper Bright, Justice Elena Kagan excoriated the Court’s right-wing majority for “giv[ing] itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.” The Court itself had inadvertently showcased the danger of having judges act as regulatory experts a day earlier, when Justice Neil Gorsuch repeatedly confused the air pollutant nitrogen oxide with the anesthetic nitrous oxide (more commonly known as “laughing gas”).
But Chevron’s repeal is no laughing matter. Allowing unelected, lifetime-appointed federal judges to invalidate countless regulatory protections based purely on their own political preferences will open the floodgates to a corporate legal assault on crucial regulatory protections—from clean air and water, to food and drug safety, to labor and civil rights.
Curiously, Chevron was once celebrated by conservatives (including the late Antonin Scalia), as it allowed the Reagan administration to continue its industry-friendly regulatory approach unimpeded by the more liberal federal courts at the time (the DC Circuit ruling overturned by SCOTUS in Chevron was written by then-circuit judge Ruth Bader Ginsburg). But over the past decade, as Democrats regained control of the executive branch and used Chevron deference to check corporate power, conservatives have changed their tune. Aided by the GOP’s packing of the courts with Federalist Society alumni, the conservative legal movement and Big Business now see the unelected judiciary as the best long-term venue for dismantling the administrative state.
Their most powerful ally in this effort has been Justice Clarence Thomas, a former supporter of Chevron doctrine whose about-face has been equally opportunistic. According to The Lever, Thomas—who wrote a landmark opinion upholding Chevron in 2005—began working to overturn the doctrine after he and his wife received lavish undisclosed gifts and financial support from wealthy conservative benefactors, including real estate mogul Harlan Crow and Federalist Society leader Leonard Leo. Records unearthed by ProPublica have also revealed that Thomas was invited to fundraising events held by fossil fuel billionaire Charles Koch, whose donor network has long sought the overturning of Chevron.
These wealthy benefactors played a hidden role in the successful overturning of Chevron this term by using the disputes about federal fishing fees in the Loper Bright and Relentless cases as stalking horses against the doctrine. Petitioners in both cases were represented pro bono by lawyers with close ties to the Koch network. In Loper Bright, herring fisherman Bill Bright was represented by three lawyers who also work for Americans for Prosperity, one of the Koch Network’s most prominent organizations. In Relentless, the petitioners were likewise represented free of charge by the New Civil Liberties Alliance (NCLA), a right-wing litigation group that has received over $5 million from Koch-affiliated organizations and $4 million from Leonard Leo’s dark money groups.
The Court’s power brokers have also used amicus curiae (“friend of the court”) briefs to engage in judicial lobbying. In Loper Bright and Relentless, we found 19 examples of this practice. Right-wing think tanks Cato Institute, Competitive Enterprise Institute, and Texas Public Policy Foundation—who all filed anti-Chevron doctrine amicus briefs in Loper Bright—have received millions in donations from Koch organizations. The Board of Trustees for the Manhattan Institute, another Koch-funded Loper Bright amicus filer, is chaired by Justice Samuel Alito’s wealthy fishing buddy Paul Singer and counts Harlan Crow’s wife Kathy among its members. Leonard Leo has similarly bankrolled several amicus filers, including the Mike Pence-led Advancing American Freedom, the anti-abortion group Students for Life of America, and (conspicuously) the recently-launched fishing industry lobby group NEFSA.
Despite these flagrant conflicts of interest, neither Justice Thomas nor Justice Alito recused themselves from Loper Bright or Relentless. In fact, the only Justice to recuse from either Chevron case was Ketanji Brown Jackson, who had participated in oral arguments for Loper Bright while serving as a circuit judge.
The Loper Bright decision is already bearing fruit for its corporate supporters. Just hours after the decision, Eastern District of Texas Judge Sean D. Jordan cited it in his decision to partially block a Department of Labor rule that would have made over 4 million workers eligible for overtime pay. Loper Bright has also been cited in at least four other legal challenges against the DOL’s protections for tipped and gig workers, as well as a new lawsuit filed by three New Jersey hospitals against HHS rules governing Medicare reimbursement. Experts at the Center for American Progress have outlined the many other regulatory protections that could be at risk post-Chevron, including fair housing and anti-discrimination rules, relief for student borrowers, the EPA’s new vehicle and power plant emissions standards, and the CFPB’s crackdown on predatory junk fees.
The devastating impact of Chevron repeal has been compounded by other radical party-line power-grabs made by the Court this term. In SEC v. Jarkesy, the conservative majority made it much harder for the federal government to prosecute white collar criminals, while also threatening the structure of many administrative agencies. And in Corner Post v. Board of Governors of the Federal Reserve System, the Justices functionally eliminated the statute of limitations for challenging new federal regulations. In her dissent for the latter, Justice Jackson warned that “the tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government.”
Of course for the right-wing, devastation is the goal. The Court’s dismantling of the administrative state follows Donald Trump’s own attempt to do so in the waning days of his presidency through the short-lived Schedule F scheme, which would have empowered the president to fire thousands of career civil servants at will and replace them with political loyalists. Though repealed by the Biden administration, restoring Schedule F remains a central plank of both Trump’s 2024 campaign and the Heritage Foundation’s Project 2025.
If nothing else, the end of Chevron should end debate among court-watchers as to whether any of the Roberts Court’s six conservative members (including Loper Bright author John Roberts himself) are “moderate.” Loper Bright is one more example in a series of landmark rulings— including Citizens United v. FEC, Janus v. AFSCME, Dobbs v. Jackson Women’s Health, and the recent Trump v. United States—which reveal what John Roberts and his Court actually care about. They have no regard for long-held precedent or for the rule of law, only far-reaching power-grabs that benefit the Federalist Society and Big Business. Their flagrant disregard for judicial ethics and the separation of powers should compel Congress to rein in the Court’s unchecked power by codifying Chevron deference into law, enacting a binding and enforceable Supreme Court ethics code, impeaching Justices Thomas and Alito, and expanding the Supreme Court.
Corporate actors and right-wing activists are attacking the administrative state because they know how important it is for protecting the public from unchecked corporate power. So long as the Supreme Court retains its corrupt right-wing majority, the future looks bright for Big Business. For the rest of us, the Court’s relentless power-grabs will make everyday life much worse.