We Just Witnessed the Biggest Supreme Court Power Grab Since 1803

In the biggest judicial power grab since 1803, the Supreme Court today overruled Chevron v. Natural Resources Defense Council, a 1984 case that instructed the judiciary to defer to the president and the president’s experts in executive agencies when determining how best to enforce laws passed by Congress. In so doing, the court gave itself nearly unlimited power over the administrative state and its regulatory agencies.

Now, if you’re not a lawyer, that probably sounds bad, but mainly in a technical sense. Regulatory agencies like the Environmental Protection Agency and the Securities and Exchange Commission issue influential but deeply complicated rules, so it makes sense that somebody should have final authority over whether and how to enforce those rules. Since we have already made the disastrous decision to allow the Supreme Court to tell us who gets to be president and what women can be forced to do with their bodies, it might not sound like that big of a leap to also let the court decide how much lead can leak into our drinking water or which predators are allowed to sell mortgages.

The thing is: The US Constitution, flawed though it is, has already answered the question of who gets to decide how to enforce our laws. The Constitution says, quite clearly, that Congress passes laws and the president enforces them. The Supreme Court, constitutionally speaking, has no role in determining whether Congress was right to pass the law, or if the executive branch is right to enforce it, or how presidents should use the authority granted to them by Congress. So, for instance, if Congress passes a Clean Air Act (which it did in in 1963) and the president creates an executive agency to enforce it (which President Richard Nixon did in 1970), then it’s really not up to the Supreme Court to say, “Well, actually, ‘clean air’ doesn’t mean what the EPA thinks it means.”

For an unelected panel of judges to come in, above the agencies, and tell them how the president is allowed to enforce laws is a perversion of the constitutional order and separation of powers—and a repudiation of democracy itself.

But repudiating democracy to expand its own power is exactly what the Supreme Court did today in its ruling in Loper Bright Enterprises v. Raimondo, which overturned Chevron. In a 6-3 decision, which split exactly along party lines, Chief Justice John Roberts ruled that the courts—and, more particularly, his court and the people who have bought and paid for the justices on it—are the sole arbiters of which laws can be enforced and what enforcement of those laws must look like. Roberts ruled that courts, and only courts, are allowed to figure out what Congress meant to do and impose those interpretations on the rest of society. He wrote that “agencies have no special competence in resolving statutory ambiguities. Courts do.”

That is a naked power grab that places the court ahead of literal experts chosen by the president, who is the one elected official we all get to vote for. Who do you think has a “special competence” in resolving what the word “clean” means in the context of the “Clean Water” or “Clean Air” act—experts at the EPA or justices on Harlan Crow’s yacht? Who do you think has a special competence to resolve what “safe” working conditions require—experts at the Occupational Safety and Health Administration or justices who have never worked as much as a day at a job that requires them to be outside? Who do you think has a special competence to resolve what “equality” means under the Civil Rights Act for women in workplaces—experts at the Equal Employment Opportunity Commission or justices who have been accused of attempted rape?

Even if you do think, somehow, that judges are best positioned to determine how to enforce the laws passed by Congress, who in the hell gave them the power to do so? Not the Constitution. When Congress and the president talk about how to do the work of the people, and the Supreme Court butts in, the official constitutional response to the court is, “I don’t remember asking you a goddamn thing.”

Despite the actual structure of the constitution and all of its amendments, the Supreme Court, as an institution, has fought to exceed the limits of its constitutional power from the very beginning. Its ruling in Loper Bright is only its latest and most brazen move to set itself up as the ultimate and final authority in the nation. As I said, the appropriate historical context for its ruling today is not 1984 and its Chevron decision, but its 1803 ruling in Marbury v. Madison. It was then, back when the country was still in its swaddling blankets, that the Supreme Court declared itself the sole interpreter of the Constitution. The word “unconstitutional” appears nowhere in the Constitution, and the power to decide what is or is not constitutional was not given to the court in the Constitution or by any of the amendments. The court decided for itself that it had the power to revoke acts of Congress and declare actions by the president “unconstitutional,” and the elected branches went along with it.

Even now, this is perplexing. The court has no enforcement power of its own, so there’s no inherent reason either the president or Congress has to defer to its demands, other than by convention and tradition. Yet the normal thing is for the court to issue a ruling, after which the elected branches are expected to do all the work of bending themselves to the court’s will. Sometimes, presidents just ignore the court (as Andrew Jackson, Abraham Lincoln, and Franklin Delano Roosevelt did) and wait for the court to figure out that nobody cares. Other times, the legislature will ignore the court, or drag its feet before implementing the court’s rules (as Southern state legislatures did after Brown v. Board of Education, essentially refusing to desegregate until John F. Kennedy sent federal troops down to make them do it). But most of the time, the elected branches will largely do what the court tells it to do, even though nobody elected the court, and the Constitution doesn’t give the court the power to make the rules.

Sometimes, however, there will be a flashpoint when the Supreme Court grabs as much power as it can stuff in its pockets and dares anyone to stop them. That’s what happened in Marbury v. Madison, and that’s also what happened in 2000, after the court’s ruling in Bush v. Gore. In that case, the Supreme Court picked the president instead of letting Florida recount the votes of its people.