In one of the most consequential opinions of its term, the US Supreme Court has increased its own power, and that of other federal judges, in a way never envisioned by the Framers. We saw the ruling coming, but that doesn’t make it any less dangerous.
The decision in Loper Bright Enterprises v. Raimondo will impact Americans in a multitude of ways, from the safety of products that we use, to availability of safe and available medication on the market, to the ability to stop banks from charging usurious fees and interest rates, and the cleanliness of our land, air, and waters. The decision will not only allow judges to put themselves in the shoes of experts who are tasked with these matters, but it also represents the latest in a string of rulings to upend court precedent in a way that is dangerous for the rule of law and the principle of separation of powers.
In a 6-3 ruling along ideological lines, the court overturned the Chevron doctrine. That rule, named after a landmark ruling by the court nearly four decades ago, required courts to give deference to federal agency’s interpretation of its own rules in cases where federal law is ambiguous.
This is important: Not all ambiguous laws are bad or faulty. Members of Congress sometimes realize that they, too, lack the kind of deep knowledge that experts in federal agencies have when it comes to safe pollution levels, or artificial intelligence technology, or airline safety. So they write laws to give those experts enough leeway to do what they know how to do better.
Think of the example of the abortion drug mifepristone, which was approved by the Food and Drug Administration as safe and effective more than two decades ago. Its use was expanded by the agency more than a decade later, and it is now the most common method of ending a pregnancy in the country.
Because one federal judge disagreed with the FDA’s regulations when ruling on a challenge to the drug, its availability — and the right of women to have access to safe and effective abortion care — was threatened nationwide, even in states like Massachusetts, which protects its use. Ultimately the challenge was dismissed on procedural grounds. But the next one might not be — and judges are now less constrained in their ability to substitute their judgment for that of the FDA’s medical experts.
Advertisement
This ruling is but the latest blow in the attack on the ability of agency experts to decide the complex questions that judges are ill-equipped to handle; judges who were never meant to be lawmakers nor executive officials. In previous opinions the court has used other methods to erode the ability of administrators to do their jobs.
Chief Justice John Roberts and the rest of the court’s majority used that fact to justify eliminating Chevron entirely.
“Given our constant tinkering with and eventual turn away from Chevron, and its inconsistent application by the lower courts, it instead is hard to see how anyone — Congress included — could reasonably expect a court to rely on Chevron in any particular case,” Roberts reasoned.
Essentially, because this court has so repeatedly and badly weakened Chevron to the point no one could rely upon it, it was deemed no longer worth saving. Stare decisis, the core and important judicial principle of letting precedent stand absent extraordinary circumstances, has died by a thousand cuts.
Justice Elena Kagan, writing in dissent and joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, is right.
“It is impossible to pretend that today’s decision is a one-off, in either its treatment of agencies or its treatment of precedent,” Kagan wrote.
Which means future challenges of medications like mifepristone, or regulations aimed at protecting land used by Indigenous cultures for generations, or Justice Department policies in place to ensure that voting rights are protected are on thin ice if Congress was the least bit unclear in the legislation it passed. In such cases, federal judges are now empowered to act as federal regulators in robes.
Advertisement
And with another long-standing court ruling falling by the wayside, this court continues to make itself more powerful as it resists calls to become more accountable. If Chevron was not worth respecting, will other precedent protect the right to marry, regardless of gender or sexual orientation? Will the right to contraception endure?
A court unconstrained by the bounds of precedent is a body of unelected lawmakers. And there is nothing ambiguous about that.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.
