If Congress thinks they shouldn’t have to do the work of legislation, then they can all quit and we can elect people who are willing to do the job we elect them to do.
What's that I hear you say, he won't do it because it would hamper him personally? Well, bless his heart!
SCOTUS hasn't had a real originalist in like 200 years.
So we should interpret it based on the things it doesn’t say?
Alito's originalist position is that he can reject using such contemporary sources, that he can reject all precedent, and interpret the ambiguous portions of the Constitution however he wants.
---
Incidentally, one of the clear intentions of the framers of the Constitution was that the future should not be chained to the tyranny of the past. This sentiment was pervasive in the Revolutionary era. It was intended that future generations would need to make the document work for their own times, and not constantly be second guessing what the deific Founders said. Check out the writings of Madison or Adams or Jefferson or Franklin sometime. They did not want to be deified.
To paraphrase his opinion on Dobbs, ex facto the Constitution grants neither an explicit right nor prohibition to abortion--the framers saw it as a legal "gray area" to give a liberal reading of history--so following the 10th amendment, any regulation of abortion should be devolved to the states. Perhaps it is better if abortion were nationally legalized, but Alito's opinion seems reasonable if we are following the rules to the letter.
Re: the Founders, they do not write about the "tyranny of the past" nearly as much as they write about plain ol' "tyranny" of living govts--maybe the closest is Federalist No. 14 or Thomas Jefferson's 1816 letter to Samuel Kercheval "We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." Conversely, we can find tons of examples of the Founders being inspired by classical/traditional sources e.g. Greek (Plato, Aristotle, Plutarch), Roman Cicero, Polybius), the bible, English Common Law etc. It is clear the Founders were neither iconoclasts nor Trotsky-style "Permanent Revolutionaries."
Plus Marbury is too inside baseball for it to get reversed via constitutional amendment.
If we're going by a strictly textualist interpretation of the Constitution then this is the only valid option, barring a Constitutional Amendment to actually give the power of judicial review to the Supreme Court.
Is it absurd and insane? Yes. But so is determining law by in essence conjuring the ghosts of dead men.
You mean the precedent liberals used to completely and un-democratically reshape the American republic in the mid-20th century—everything from taking religion out of schools to deciding that towns couldn’t shut down strip clubs “because free speech?”
Conservatives will 100% take you up on overturning Marbury.
"Why, the very idea..."
Also, when those executors of the law are determined to be the sole arbiters of what the law means without any appeal or restraint, then the “they are experts” ideal has been mistaken for reality.
Imagine if the courts deferred to the police way more, because they are experts on what “crime” really is and know what the written law should be interpreted to mean. Oh, and let the police be the judges and run their own courts, too.
Let’s try it like this: “If Congress doesn’t like how police implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.“
The whole problem is that without that branch of separated power, the police/federal agencies can do whatever they want, regardless of what the law says. Congress could pass new laws every year that say things like “No, we really meant it, police can’t randomly arrest people and keep them in jail forever.” But there wouldn’t be any way to judge whether they are doing that.
Meanwhile, you need to brush up on your civics knowledge. The authority to command the armed forces is directly under the executive, which is why the President is the “Commander in Chief.”
In other words, these are not problems, either in the real world way things work (like the EPA has problems now after this decision) or in a constitutional sense.
Congress directs some times and defers other times. Congress absolutely does not direct every pentagon spending program.
> The authority to command the armed forces is directly under the executive
The EPA is an "executive department" as described by article two of the constitution the same as the department of defense. If the founders expected congress alone to execute executive authority (except in the special case of the military) then the constitution would have been written that way and the EPA would have been created as a body that reports to congress. Congress was obeying the constitution when they created the EPA under the president, just as they were when they created every other executive department.
The argument is not that the EPA should report to Congress instead of the President. The argument is that the EPA should be limited to doing what the laws Congress passed actually says. It is the executive branch’s responsibility to implement the law, not create, implement, and judge cases like they have been doing.
I'll never understand this bullshit stance "democrats cant do it because then maybe republicans will do it later" ... i mean how does not doing it ever stop republicans from doing it anyway later lol... this stance is what has fucked democrats for decades, this obliviousness that republicans have no issue jumping directly to extremes, like saying ROE was settled law and then overturning it in a fucking massive partisan ruling.
On top of everything else, Roe was an aberration internationally. When Macron criticized the U.S. Supreme Court for overturning Roe, he got the French people to approve an amendment to add an abortion right to the French constitution. Of course, French courts wouldn’t just gin such a right into existence from thin air, because they’re not lawless. I don’t know if anyone picked up on the irony of that.
The real chumps are Republicans. They should appoint justices that will create the conservative version of the Warren Court. Adopt Democrats’ preferred “emanations from penumbras” standard for interpreting the constitution. I bet you can find some cool stuff in “emanations from penumbras” of the second amendment, the contract clause, etc.
There is no literal reading of the second amendment that grants gun rights to individuals outside of well regulated militias.
They lied to fucking congress
Or I mean, a different outcome is that we get EPA court. Article III is very short and doesn't design the federal judiciary. Biden could pretty easily just make the EPA a court with lifetime appointments. What an own goal that would be haha.
thanks!
But Congress did it anyway, and the SCOTUS has over the years upheld it. There was a landmark court case involving Chevron (the oil company). SCOTUS ruled there saying that the executive branch agencies responsible for rulemaking are experts in their fields, and we should mostly defer to them when their position seems reasonable, and when Congress hasn't passed a law that contradicts what they want to do.
Marbury is a much older case, that made precedent the idea that courts have the ability to strike down laws that they believe violate the constitution.
The current conservative-leaning SCOTUS is skeptical of what conservatives call the "administrative state" (basically: rulemaking done by the executive branch). They seem to not be a big fan of "Chevron deference", and are fully willing to exercise their Marbury-affirmed power to strike down executive actions that they don't believe are constitutional, or don't believe directly stem from laws Congress has passed.
SCOTUS invented the Chevron doctrine because it believed at the time courts were too quick to second-guess the logic behind agency rule making, and in doing so unnecessarily and improperly inserting themselves into technical debates as well as broader political debates. IOW, the court was primarily concerned with people using the courts to subvert executive prerogatives and electoral politics. The concern now, apparently, is that administrations are using agency flexibility to subvert electoral politics.
Then and now, by moving the threshold for when courts can second-guess federal agencies, it's effectively altering the rights and responsibilities between Congress and the President, as well as between those two institutions and the electorate more broadly.
That's very charitable. A less charitable view might be that their concern is that regulatory bodies and other executive agencies are standing in the way of personal and corporate profits, and that overturning Chevron means that the courts can now cripple the ability for federal agencies to function by overruling the reasonable interpretations of statute those agencies have been operating under all this time and instead limit them to only the most narrow interpretation of the law. Law that has, for decades now, been being written under the assumption that Chevron exists, and not with the expectation that an adversarial judge will try to undermine the intention of the laws being passed.
I doubt it. I think most people have some federal agency they aren't a huge fan of. Sure, the fact that Chevron helped to allow the EPA keep your air and water from being poisoned by greedy corporations who would do it in a second if it would make them more money helps to make it a more sympathetic cause, but it's not as if people aren't aware that the defense applied to every other agency too.
> I wouldn't want the default assumption of the courts to be that when the law is unclear, whatever the sheriff or the highway patrol decides is illegal this month is
That isn't a fair characterization of the situation. Even forgiving that the police aren't a federal agency, first a question around the legality of what the police were doing would have to reach the court in the first place, then the court would have to determine that an ambiguity in the law existed, and then the court would have to decide if the interpretation of the law that the police has been using is reasonable and only if it wasn't would the court impose its own interpretation. That seems pretty fair even in the case of the police.
It's not about deferring to the enforcers of that law. It's about deferring to the law first, and only imposing a narrower interpretation if the enforcers of that law were already out of line. It just means that agencies aren't limited to the most narrow interpretation of the law as written.
There are of course federal policing agencies, such as the DEA, ATF and FBI, but it doesn't matter because the point wasn't about federal agencies as such. It was about deferring to the enforcers of a law about what the limits of their powers are, which just seems like a terrible idea at all levels of government.
Was the FBI spying (and more) on civil rights leaders part of their powers as federal law enforcement officers executing their duties? I have no doubt they would say so, and absent a specific law from congress telling them they couldn't, who is to argue that they were unreasonable? Surely we should defer to them as they're the experts in their field right?
If the secret service started shutting down cell towers within a 10 mile radius of presidential rallies, well that's just common sense protection against remote explosives and well within their directive to protect the president right? They are the experts on this after all and have wide latitude to do what's necessary. No need for the courts to review that action or the laws surrounding it.
It's a fantasy to think that this will mean state spying powers will be reduced.
> absent a specific law from congress telling them they couldn't, who is to argue that they were unreasonable?
The courts are! They always have been, even under Chevron. If at any point a judge thought that the FBI, ATF, DEA, NSA, or <insert three letter agency here> interpreted the law unreasonably, or extended their authority beyond what was allowed that judge had the power under Chevron to impose the court's own interpretation of the law on that agency.
The Chevron defense said that if the court agreed that an agency had an interpretation of an ambiguous law which was reasonable and permissible the court couldn't impose a more narrow standard on them. Because it's been overturned it now doesn't matter if the court thinks that what the agency was doing was reasonable and permissible, the court can inject it's own interpretation anyway.
Chevron prevented the court from forcing the most narrow interpretation of the law on a federal agency in cases where the court couldn't justify doing it. That's it. Now that protection is gone and I promise that it's not going to make you more free or better off. It means that any and all of the rights and protections you have today thanks to federal agencies are at risk of going away as soon as a case goes in front of an activist judge
Never said that it would, I said allowing enforcers to set the extent of their own powers is a bad idea.
>Chevron prevented the court from forcing the most narrow interpretation of the law on a federal agency in cases where the court couldn't justify doing it.
Federal agencies (indeed any government agency) should always be subject to narrow interpretations of the law when the extent of their authority and powers are in question. If that interpretation is too narrow for Congress, then Congress needs to be more explicit about their intent. The law needs to be as clear as possible. Ambiguity is a flaw not a feature and the fact that ambiguities can lead to problems means we should make better law, not throw our hands in the air and let whoever's in charge this week decide what the policy is. If we want a massive federal agency to oversee something then the extent to which that agency is empowered and what that agency is empowered to do had better be explicitly spelled out.
The law, in most cases, is about the practical application of an ideal (the law) to reality (the case).
If things weren’t so lopsided and blatantly partisan, then yes, the theory would matter. It would probably be a prosaic and boring decision.
This court is not only engineered to lean heavily in one direction, it is also being fed cases based on that common agenda.
In addition - we cannot avoid ambiguities unless we have powers of foresight that make the entire governing edifice irrelevant.
No one could predict the capabilities or failures of this generation of LLMs for example. There is no better “law”, unless it is an act that gets updated on a near monthly or quarterly basis.
This is a timeline that a congress is not suited to manage. This is definitely something that an agency of some sort would.
Finally - Saying that bureaucrats and experts are biased, but to leave out the bias of the courts feels unfair.
What’s more, these agencies—particularly the ATF—love to make up, out of whole cloth, completely new rules that are contrary to their own previously-expressed rules that have the effect of retroactively turning millions of law-abiding people into felons overnight.
In the original context of the 1984 Chevron case, environmentalists were arguing that the EPA had redefined "source" in an overly narrow way, much narrower than Congress had originally intended in passing the Clean Air Act, thereby enabling companies to emit more air pollution. The Chevron decision was seen at the time as a loss for environmentalists and win for the corporate sector and conservatives.
It's funny how the tables have turned – a decision which was originally praised by conservatives and condemned by liberals and environmentalists, eventually ends being condemned and overturned by conservatives, while being defended by liberals and environmentalists. Both the 1984 case and the 2024 case had a conservative majority, and were perceived at the time as furthering conservative political objectives.
I think what's really happened: in 1984, the federal judiciary was widely perceived as liberal-dominated, while the federal bureaucracy was seen as relatively more conservative, so liberals wanted the judiciary to be more powerful than the bureaucracy, conservatives wanted the opposite. In 2024, the situation is reversed: now the federal judiciary is perceived as being increasingly dominated by conservatives, while the federal bureaucracy is viewed as being more liberal, so now liberals want to defend the bureaucracy's power against judicial encroachment.
It looks to me like the only thing that's constant here – on both sides – is "the ends justify the means".
> the useless rent seeking politicians and their cronies.
Courts are largely politically appointed. Why are judges necessarily more trustworthy in your opinion?
My real opinion is that no one is more trustworthy than the other. They're all people. But there are constitutionally delegated duties given to each branch that we've gradually eased over the past century, and between Jarkesy disallowing in-house courts for certain types of crime, the resurgence of the non-delegation doctrine and now the overruling of Chevron, SCOTUS thinks this delegation is not optional. I personally agree with them hesitantly, but predicting the future is hard, and there are some actions they take where I think the consequences are obvious, but this is not one of them, and I would have slept no more or less soundly if this case had come out the other way.
Also worth noting is that the head of the EPA at the time was Anne Gorsuch, mother of Justice Neil Gorsuch.
The D.C. Circuit, in an opinion by Ruth Bader Ginsberg, sided with NRDC. But the Supreme Court reversed, ruling in favor of the EPA (and Chevron). The Supreme Court said that the court had to defer to the EPAs interpretation of the word “source,” even if the court thought that wasn’t the best interpretation of the law.
By "long ago" the delegation was first mentioned (AFAICT) in 1825:
> It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. [23 U.S. 1, 43] But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.
* https://caselaw.findlaw.com/court/us-supreme-court/23/1.html
There hasn’t been a successful nondelegatiom challenge in like a hundred years.
However it's also very unlikely that Congress will pass Chevron into law, and the text they might write might be narrow enough to pass constitutional muster, so until then this is a purely academic question.
You might want to read the room. Not just in the US, but across Europe as well, people are angry about their democracy having been stripped from them, and rule by unelected, unaccountable experts.
Consider the 2016 "Resistance" by federal employees to the election of Donald Trump. The public had clearly voted against immigration and free trade. At that point, the job of the federal bureaucracy was to put aside their own views about whether immigration and free trade were good things, and use their skills to implement the agenda of their duly elected new boss. Instead, they publicly and vocally declared their insubordination, both to the President and the public who elected him. Likewise, during the 2020 George Floyd riots, you saw public health experts allow their moral ideology to affect their expert recommendations--treating religious gatherings as somehow being different from social justice gatherings.
My belief is that these things directly led to the debacle of the pandemic, when people refused to trust experts on vaccination--despite Trump telling them to take the vaccine. My dad spent his life working as a public health expert in the third world, and what happened was, while disappointing, not a surprise to him. A huge part of public health work is getting people to trust you. And you must earn that trust by putting the job first. If you go into a village in Bangladesh and people don't want to be treated by a woman doctor, you provide them a male doctor. You don't chastise them for their "sexism." My dad actually worked for a Planned Parenthood affiliate in Bangladesh. At least back in the 1980s, they were providing family planning services consistent with local beliefs, and not trying to impose western ideals on the public--something that would have swiftly destroyed trust.
Most people who aren't that smart understand that and are deferential to their betters. But they also have an intuitive and accurate sense of what's an exercise of expertise, and what's a moral or political judgment. And when experts step out of their lane, they destroy the trust that's critical to doing their jobs.
It’s of course ridiculous to expect the city bus driver to take a public opinion poll before they do their job. Public servants get their orders from their managers who are appointed by public officials. That’s their “lane.”
People have a problem with this because they expect that when they elect radicals, the entire state apparatus immediately becomes as radical as the demagogue they managed to get in office. The fact it doesn’t work this way is a feature, not a bug.
"Their job" is to shut up and drive the bus, according to the routes selected by the duly elected government. They don't get to use their position to push back on the government because they think they should be driving somewhere else. And they should be fired if they do so.
> People have a problem with this because they expect that when they elect radicals, the entire state apparatus immediately becomes as radical as the demagogue they managed to get in office. The fact it doesn’t work this way is a feature, not a bug.
That is exactly what it should mean. If the people elect someone who promises radical change, a functioning democracy should be responsive to that! Resisting the policy agenda of the elected government is not a legitimate function of the bureaucracy. And it's absolutely a "bug," not a "feature." I can't think of any constitutional system that envisions the bureaucracy serving as a check on the policy choices of the elected branches of government. Certainly, there is no such concept in the U.S. Constitution, which lays out a comprehensive system of checks-and-balances.
What you're saying is exactly the anti-democratic power grab I'm talking about. It's experts thinking that their education somehow validates their policy preferences, and that the point of elections is simply to provide some sort of signal to the permanent bureaucracy to evaluate according to their independent judgment and discretion.
Of course Government of India Act was not a great system at any rate and you’re probably not a fan of the UK one either.
Indeed, I think it’s no coincidence that all those Brahmin elites that did well for themselves under colonial rule come over here and become natural Democrats.
Ye… You have never seen an incompetent manager that will draw a route of a bus through a brick wall, and yell over the phone ‘why haven’t you driven through it?’
More broadly, do you hate the idea of employees having opinions and their own initiative? Is your boss tells you to set the company building on fire, will you do it? If you are told to drive over a child, will you do it?
I feel like you are being an ideologue and you like how things work in your head, without realising that if everyone did exactly what their boss tells them, society would collapse within a week
I hate the idea of people working for the federal government resisting the policies it’s their job to implement, because they have policy disagreements with the duly-elected leaders.
You mean a new boss put in place by an Electoral college, which didn't represent the majority of the people? Majority of the country didn't vote for the 2016 President
Trump won the vote that determines who represents the people in the federal government. There is no separate election where the candidates campaign to win the most absolute number of votes. You can add up the state-by-state vote totals, but that’s a meaningless number because nobody is trying to win that.
Fun fact: if you want to talk about different ways in which we don’t select the executive, it’s interesting you overlook the most common one in advanced democracies: the number of party votes or seats in the legislature. Trump would have won that too, both in seats and by 2 million total votes.
He's not the governor of a single state so when those states issues stay at home orders conflicting with his direction that's just federalism in action. And then you need an act of congress to override the states like with slavery.
Which is actually possible to do by amending the US Constitution, but good luck with that.
Anyways, Adams' 18 judges were not sat. This could happen again: just close out a bunch of judges' courts -- they'll still be judges for life, but judges without a court.
But in practice, to non-lunatics, stare decisis (the legal principle that says not to overturn, or even consider, topics that have already been decided in the past without an extremely good reason) is an incredibly important prior to bring into any discussion. If the court actually uses its power to completely rewrite the rules of how government works on a whim - and let's be clear, that's what this decision does - then there's no way for anyone to ever make a plan. Nothing is stable.
Unfortunately, at least 5/9 of the current Supreme Court are either lunatics or blatantly corrupt. Chevron was decided unanimously for a reason. There is no way to administer a modern state without that concept - which is why right-wing extremists are so happy to see it gone, because they don't want the state administered.
Interestingly, the ability to declare a law un/constitutional is not an enumerated power given to the court by the Constitution. The Supreme Court declared that power for itself in Marbury v. Madison and people have just went with it ever since.
Marbury is an utterly natural consequence of the Supremacy Clause and Article III (and the context of common law).
The constitution declares itself as supreme law. See the Supremacy Clause:
This Constitution, and the Laws of
the United States which shall be
made in Pursuance thereof; and all
Treaties made, or which shall be
made, under the Authority of the
United States, shall be the supreme
Law of the Land; and the Judges in
every State shall be bound thereby,
any thing in the Constitution or
Laws of any State to the Contrary
notwithstanding.
No, it’s to decide cases and controversies [1]. Deciding on constitutionality flows from that.
This case, for example, was decided more on the Administrative Procdures Act than on the Constitution.
[1] https://constitution.congress.gov/constitution/article-3/
I'm not convinced you are right. If you look at the conservatives on the current SCOTUS, they aren't monolithic. Thomas and Alito are hard conservatives (with Thomas the hardest), [0] and I'd expect they'd likely do as you suggest and strike down any statutory attempt to reintroduce Chevron as unconstitutional.
But I'm not sure Roberts would be willing to go along with that. As the most moderate of the conservative justices, he was comfortable striking down Chevron on statutory interpretation grounds, repeating that on constitutional grounds might be going too far for him. And he only has to convince one other conservative to go along with him, and with the support of the liberals he'd have a majority. Kavanaugh is only modestly more conservative than Roberts, so he'd be the most likely candidate. I think, if Roberts was to overturn on constitutional grounds a statutory attempt to reinstate Chevron, he'd prefer to do it in the narrowest way he could – striking down that particular attempt, but leaving open the possibility that Congress could have another go at it.
The other thing you have to keep in mind, is ultimately the justices are individuals with their own idiosyncrasies, and they don't always vote the way you'd predict if ideological leanings were the only factor driving their decisions. A good example of that was the Fischer v United States case [1] from the other day, in which SCOTUS sided with January 6 defendants: Jackson joined the conservatives in that, whereas Barrett joined the liberals in dissenting.
I suppose Jackson siding with the conservatives was not entirely surprising; as the most moderate of the liberal justices, she is the most likely to join the conservatives in any case. Barrett's dissent was somewhat more surprising, given she's not the most moderate conservative, with Roberts and Kavanaugh siding with the liberals more often than she does.
[0] https://www.axios.com/2019/06/01/supreme-court-justices-ideo...