Noah Feld­man

The New York Review of Books - - Contents - Noah Feld­man

Tip­ping the Scales

If Jus­tice An­thony Kennedy re­tires this sum­mer and Don­ald Trump nom­i­nates a suc­ces­sor who is con­firmed by the Se­nate, the Supreme Court will have a sta­ble ma­jor­ity of con­ser­va­tive jus­tices for the first time since be­fore the New Deal. But even if Kennedy stays on the Court for an­other year, it is likely that Trump will be able to ap­point at least one more con­ser­va­tive jus­tice dur­ing his time in of­fice un­less the Democrats win fifty-one Se­nate seats this Novem­ber. Kennedy is eighty-one and has been sig­nal­ing that he is pre­par­ing to step down. Ruth Bader Gins­burg, who is eighty-five, clearly wishes to stay on the Court as long as Trump is pres­i­dent. So does Stephen Breyer, who turns eighty later this year. If Trump is re­elected, he could po­ten­tially re­place all three of these jus­tices with staunch young con­ser­va­tives.

The cur­rent Court’s four con­sis­tent con­ser­va­tives are all sub­stan­tially younger than Kennedy, Gins­burg, and Breyer. The old­est, Clarence Thomas, is sixty-nine. Sa­muel Al­ito is sixty-eight, Chief Jus­tice John Roberts is six­tythree, and Neil Gor­such is just fifty. All are self-de­scribed con­sti­tu­tional orig­i­nal­ists; all fa­vor in­ter­pret­ing statutes based on text rather than their in­ten­tion; and all have strongly pro-busi­ness ju­di­cial records. Should Trump ap­point a fifth con­ser­va­tive—to say noth­ing of a sixth or sev­enth—the con­ser­va­tive ma­jor­ity could eas­ily last a gen­er­a­tion. In light of this prospect, it is not too soon to start ask­ing what a con­ser­va­tive Supreme Court would mean for the coun­try. A con­ser­va­tive ju­rispru­dence, ag­gres­sively ap­plied, would re­shape Amer­i­can law and pol­i­tics. It would rein­ter­pret fun­da­men­tal is­sues of in­di­vid­ual and pri­vacy rights, health care, em­ploy­ment, na­tional se­cu­rity, and the en­vi­ron­ment. These changes would in turn af­fect elec­toral pol­i­tics. The range of con­ser­va­tive leg­is­la­tion that could sur­vive ju­di­cial re­view would ex­pand, while the range of pro­gres­sive leg­is­la­tion that could do so would nar­row. In ret­ro­spect, it is re­mark­able that a strong con­ser­va­tive ma­jor­ity on the Court has not emerged be­fore now. Since 1980, Repub­li­cans have held the pres­i­dency for twenty-two years and Democrats for six­teen. Ron­ald Rea­gan, who cam­paigned on the plat­form of choos­ing con­ser­va­tive judges, ap­pointed three jus­tices—An­tonin Scalia, San­dra Day O’Con­nor, and Kennedy—and el­e­vated Wil­liam Rehn­quist to the chief jus­tice­ship. That should have es­tab­lished con­ser­va­tive con­trol. Yet O’Con­nor turned out to be a cen­trist, con­trol­ling the Court for a quar­ter-cen­tury by cast­ing the de­ci­sive fifth vote in con­tro­ver­sial cases. When she re­tired in 2006, Kennedy as­sumed her po­si­tion as the swing jus­tice and un­ex­pect­edly emerged as a lib­eral hero, vot­ing, for ex­am­ple, to ex­tend con­sti­tu­tional rights to de­tainees in Guan­tá­namo Bay and mar­riage rights to same-sex cou­ples.1 Ge­orge H.W. Bush also had the chance to con­sol­i­date a con­ser­va­tive ma­jor­ity. He ap­pointed Thomas to re­place Thur­good Mar­shall but also re­placed Wil­liam Bren­nan with David Souter, who un­der­went a sub­tle yet sig­nif­i­cant evo­lu­tion from Burkean con­ser­va­tive to Burkean lib­eral. Bill Clin­ton, Ge­orge W. Bush, and Barack Obama each got two jus­tices con­firmed, which main­tained the Court’s bal­ance. That con­ser­va­tive con­trol has been so long in com­ing re­flects ei­ther mis­cal­cu­la­tion by Rea­gan and Ge­orge H.W. Bush or (more likely) some­thing less than full-throated ju­di­cial con­ser­vatism on their part.

There is one glar­ing anom­aly in the pat­tern of ap­point­ments. Obama should have been able to get Mer­rick Gar­land con­firmed af­ter Scalia died in Fe­bru­ary 2016—which would have pro­vided some in­su­la­tion against a con­ser­va­tive ma­jor­ity. The Se­nate’s de­ci­sion to block the mod­er­ate Gar­land purely be­cause Obama nom­i­nated him trans­formed both the com­po­si­tion of the Court and the norms of the con­fir­ma­tion process.

A Se­nate con­trolled by Democrats would prob­a­bly refuse to con­firm any Trump Supreme Court nom­i­nee, no mat­ter how much time re­mains in his pres­i­dency. If jus­tices can only be con­firmed when the pres­i­dent and the Se­nate ma­jor­ity come from the same party, we will wit­ness a shrink­ing Supreme Court forced to op­er­ate with eight, seven, or even six jus­tices. In this sce­nario, a pres­i­dent whose party con­trols the Se­nate would have the chance to fill all those va­can­cies with jus­tices who share his or her ide­ol­ogy. The Court’s pol­i­tics would no longer drift grad­u­ally but veer sud­denly to the left or the right.

One of the first things likely to hap­pen if the Court’s ma­jor­ity turns con­ser­va­tive is that state leg­is­la­tures in heav­ily Repub­li­can states will pass leg­is­la­tion re­strict­ing abor­tion rights. Al­ready, Mis­sis­sippi has passed a law bar­ring abor­tions af­ter fif­teen weeks— long be­fore vi­a­bil­ity. A fed­eral court blocked the law, but its pas­sage sig­nals clearly that the Court will come un­der pres­sure to re­visit Roe v. Wade.

In the past, Chief Jus­tice Roberts has shown a de­cided pref­er­ence for chang­ing con­sti­tu­tional law in­di­rectly. Rather than over­turn­ing land­mark lib­eral prece­dents out­right, he prefers to min­i­mize their im­por­tance by nar­row­ing them and lim­it­ing their hold­ings to fac­tual sit­u­a­tions that no longer ex­ist. He would surely pre­fer that Roe suf­fer death by a thousand cuts rather than see the Court ac­cused of over­turn­ing it in a stroke and cast­ing the coun­try back to the days of coat-hanger and back-al­ley abor­tions.

Yet the chief jus­tice is only first among equals. The Court’s other con­ser­va­tives have al­ready shown a will­ing­ness not to fol­low his lead, as oc­curred in the Af­ford­able Care Act case, NFIB v. Se­be­lius, when they left Roberts alone in up­hold­ing the ACA’s in­di­vid­ual man­date. Given the as­sertive ide­ol­ogy, co­he­sive po­lit­i­cal views, and no-holds-barred style of many younger ju­di­cial con­ser­va­tives, a con­ser­va­tive ma­jor­ity could be ex­pected to re­verse Roe as long as Roberts con­curred in the de­ci­sion, re­gard­less of whether he joined the opin­ion.

For pro-choice ad­vo­cates, the fall of Roe would be a dis­as­trous de­feat. Brown v. Board of Ed­u­ca­tion was con­tro­ver­sial when de­cided but gained wide ac­cep­tance over time. The Roe de­ci­sion has never achieved a sim­i­lar con­sen­sus. Many Court ob­servers, in­clud­ing Gins­burg, have sug­gested that it gen­er­ated last­ing con­tro­versy be­cause the Court de­cided it with­out first lay­ing the foun­da­tion with prior in­cre­men­tal de­ci­sions. As a re­sult, since 1973, pro­choice ad­vo­cates have been fight­ing a rear­guard ac­tion to de­fend the right to abor­tion. For Roe to be over­turned would be the ul­ti­mate fail­ure of nearly half a cen­tury of pro-choice strat­egy. The af­ter­math of a de­ci­sion strik­ing down the right to abor­tion would be com­pli­cated. Democrats would have to con­vince ma­jori­ties in each state to pro­tect abor­tion. It could be­come im­pos­si­ble for women to ob­tain le­gal abor­tions in the nu­mer­ous states that have tried to en­act more re­stric­tive abor­tion laws in re­cent decades (only to have them struck down by the courts). Abor­tions could be out­lawed in much or all of the South, the South­west, and the in­ter­moun­tain West. Those with means would still be able to travel to states that per­mit­ted them, but women too poor or young to travel would find it vastly harder to end un­wanted preg­nan­cies. Many peo­ple would prob­a­bly re­act by tak­ing to the streets, or­ga­niz­ing, and vot­ing against such re­stric­tive laws and the politi­cians who put them in place. Abor­tion rights would im­me­di­ately be­come a wedge is­sue for Democrats. Their goal would be to push women who might oth­er­wise vote Repub­li­can into the Demo­cratic col­umn. Once abor­tion rights were con­sti­tu­tion­ally rec­og­nized, lib­eral ef­forts in con­nec­tion with them were, ra­tio­nally enough, redi­rected to pre­serv­ing the com­po­si­tion of the courts, rather than ac­tively try­ing to con­vince those who re­jected such rights to change their views. For as long as abor­tion has been le­gal, con­ser­va­tives, for their part, have been able to count on the cru­cial votes of cen­trists who pre­fer con­ser­va­tive can­di­dates but qui­etly want to pre­serve the op­tion of abor­tion. With Roe over­turned, Repub­li­cans might lose the 34 per­cent of their vot­ers who be­lieve that

abor­tion should be le­gal in most or all cases.

Just as lib­er­als would no longer be able to rely on the Supreme Court to strike down anti-abor­tion mea­sures, they would have to con­cen­trate on win­ning elec­tions and lob­by­ing mem­bers of Congress to se­cure other rights that they are cur­rently seek­ing to win in court. At present, the fight for trans­gen­der rights is heav­ily aimed at con­vinc­ing judges to ex­tend ex­ist­ing an­tidis­crim­i­na­tion pro­tec­tions to trans­gen­der peo­ple. Be­cause a con­ser­va­tive Supreme Court would not in the fore­see­able fu­ture do so, pro­gres­sives would have to lobby Congress and state leg­is­la­tures for such pro­tec­tions.

Over time, the fight could well prove suc­cess­ful. As the ex­am­ple of gay mar­riage shows, changes in val­ues can even­tu­ally take place and even come to be broad-based. Sup­port for gay mar­riage has risen steadily for twenty years, from 27 per­cent na­tion­ally in 1996 to 64 per­cent in 2017. Re­mark­ably, the shift can be dis­cerned even among evan­gel­i­cals born af­ter 1964, 49 per­cent of whom now be­lieve gay mar­riage should be le­gal, com­pared to just 35 per­cent of all evan­gel­i­cals.

For this rea­son, gay mar­riage may be one sig­nif­i­cant pro­gres­sive rights vic­tory that could sur­vive even a con­ser­va­tive ma­jor­ity on the Court. Em­bold­ened con­ser­va­tive state leg­is­la­tors might try to pass new laws con­tra­ven­ing the Oberge­fell prece­dent and re­strict­ing mar­riage to one man and one woman. Yet the po­lit­i­cal cost of such ef­forts would prob­a­bly be ex­tremely high, as not only lib­er­als but also main­stream cor­po­rate in­ter­ests would re­spond with state-level boy­cotts. Some con­ser­va­tive jus­tices could po­ten­tially ac­cept gay mar­riage as a fait ac­com­pli, given how quickly at­ti­tudes to­ward it are chang­ing. A con­ser­va­tive Court would no doubt al­low re­li­gious lib­erty ex­emp­tions for mer­chants who do not wish to serve gay cou­ples.2 But if gay mar­riage re­mains the law of the land, such ex­emp­tions will come to be seen as com­pen­satory con­ces­sions to the los­ing side in a cul­ture war, rather than steps to­ward re­ver­sal of the right to mar­riage.

In ad­di­tion to rolling back ex­ist­ing con­sti­tu­tional rights, a con­ser­va­tive Supreme Court could block pro­gres­sive gov­ern­ment pro­grams. One ex­am­ple is af­fir­ma­tive ac­tion. Over decades, the Court has used the right to equal pro­tec­tion of the laws to whit­tle down af­fir­ma­tive ac­tion un­til its only im­por­tant re­main­ing ap­pli­ca­tion is in high­ere­d­u­ca­tion admissions. In 2016, to the sur­prise of many ob­servers, Kennedy cast the de­cid­ing vote to pre­serve this prac­tice—de­spite hav­ing dis­sented thir­teen years ear­lier when O’Con­nor used her swing vote to reach the same re­sult.3

A con­ser­va­tive ma­jor­ity un­con­cerned with di­ver­sity as a so­cial good in it­self would not find it dif­fi­cult to bar af­fir­ma­tive ac­tion al­to­gether on the prin­ci­ple that white or Asian ap­pli­cants are treated un­equally when race is a fac­tor in admissions. Un­like in the case of abor­tion rights, there would be no way for states to get around a con­sti­tu­tional ban on af­fir­ma­tive ac­tion.

Two re­sponses would prob­a­bly fol­low such a de­ci­sion. Pro­gres­sive stu­dents would protest vo­cif­er­ously; and ad­min­is­tra­tors who have come to be­lieve in the value of di­ver­sity as a good in it­self would seek new ways to cre­ate di­verse stu­dent bod­ies with­out for­mally tak­ing ac­count of race. Eco­nom­i­cally based af­fir­ma­tive ac­tion could be com­bined with school-based admissions quo­tas (such as ad­mit­ting the top few per­cent of stu­dents from some schools or re­gions) that are for­mally race-neu­tral but track racial de­mo­graph­ics. Uni­ver­si­ties could also in­vest in col­lege prepa­ra­tion for un­der­priv­i­leged mid­dle and high school stu­dents and ac­tively re­cruit strong mi­nor­ity stu­dents. A con­ser­va­tive Court ma­jor­ity could con­ceiv­ably seek to limit and even over­turn other pro­gres­sive leg­is­la­tion by re­strict­ing the le­git­i­mate scope of the states’ or Congress’s ac­tiv­i­ties. In some re­spects, it might bring the Court closer to the lib­er­tar­ian, prop­er­typro­tect­ing con­sti­tu­tional in­ter­pre­ta­tion of the early twen­ti­eth cen­tury. In the Lochner era, so-called af­ter a 1905 de­ci­sion block­ing a New York State max­i­mum-hours law for bak­ers, the Court struck down much pro­gres­sive state leg­is­la­tion as vi­o­lat­ing the lib­erty of con­tract, a right it found in the due process clause of the Four­teenth Amend­ment. Then and now, lib­er­tar­ian ju­di­cial ac­tivism en­tails block­ing leg­is­la­tion that is thought to in­ter­fere with the abil­ity of sup­pos­edly free eco­nomic ac­tors to make eco­nomic de­ci­sions and form con­trac­tual re­la­tion­ships as they choose.

Lib­er­tar­ian think­ing is alive among the con­ser­va­tive jus­tices. In 2010, for ex­am­ple, the law pro­fes­sor Randy Bar­nett ar­gued that the in­di­vid­ual man­date of the Af­ford­able Care Act was un­con­sti­tu­tional be­cause it re­quired peo­ple to do some­thing they were not do­ing—buy­ing in­surance—rather than reg­u­lat­ing some­thing they were al­ready do­ing. Nearly all le­gal schol­ars found Bar­nett’s lib­er­tar­ian dis­tinc­tion be­tween ac­tion and in­ac­tion con­sti­tu­tion­ally mean­ing­less. The con­ser­va­tive jus­tices em­braced it, how­ever, hold­ing the man­date un­con­sti­tu­tional as beyond the au­thor­ity of Congress un­der the com­merce clause; Roberts and the four lib­er­als voted to sus­tain the man­date on the grounds that it was part of Congress’s tax­ing power.

But the con­ser­va­tive jus­tices would be very un­likely to go back to Lochner ex­plic­itly. The re­pu­di­a­tion of the lib­erty-of-con­tract ju­rispru­dence that char­ac­ter­ized the Lochner era is still an im­por­tant part of con­sti­tu­tional or­tho­doxy. An­tonin Scalia held up the Lochner de­ci­sion as the very model of bad ju­rispru­dence, and fre­quently ac­cused lib­er­als like Kennedy of in­vent­ing con­sti­tu­tional rights in the vein of Lochner. A con­ser­va­tive court would be like­lier to prac­tice a less rad­i­cal ver­sion of ju­di­cial ac­tivism, one in which the jus­tices op­por­tunis­ti­cally use ex­ist­ing doc­tri­nal tools to un­der­mine pro­gres­sive leg­is­la­tion.

Roberts, for in­stance, in­voked states’ rights to block the Med­i­caid ex­pan­sion pro­posed in the ACA. He held

that Congress’s threat to re­voke states’ Med­i­caid fund­ing un­less they ac­cepted ex­pan­sion amounted to an un­con­sti­tu­tional form of co­er­cion. Sim­i­larly, in Shelby County v. Holder (2013), Roberts struck down a sub­stan­tial part of the Vot­ing Rights Act by ar­gu­ing that Congress had drawn on “forty-year-old facts” about racial dis­crim­i­na­tion in vot­ing, rather than cit­ing “cur­rent con­di­tions,” to jus­tify ex­tend­ing the law. As a re­sult, states and mu­nic­i­pal­i­ties with long his­to­ries of racial ger­ry­man­der­ing can now re­dis­trict with­out first sub­mit­ting their plan to the Depart­ment of Jus­tice for pre-clear­ance, as the Vot­ing Rights Act re­quires.

Faced with this sort of con­ser­va­tive ju­di­cial ac­tivism, lib­er­als could find them­selves thwarted in pass­ing pro­gres­sive so­cial leg­is­la­tion. The hard case would arise if the leg­is­la­tion en­joyed sub­stan­tial and durable na­tional sup­port and was nonethe­less blocked by the Court. That is not what hap­pened with the ACA; the law passed by a bare par­ti­san ma­jor­ity, and the con­ser­va­tive jus­tices merely helped un­der­mine leg­is­la­tion that al­ready stood on shaky po­lit­i­cal ground. It is what hap­pened dur­ing the New Deal, when the jus­tices’ re­sis­tance led Franklin Roo­sevelt to try to pack the Court. The Court folded, and Roo­sevelt pre­vailed. To­day’s Court, how­ever, en­joys more in­de­pen­dence and public le­git­i­macy than the Court that Roo­sevelt con­fronted did, and it is far from ob­vi­ous that it would give in to Demo­cratic pres­sure.

Mat­ters of na­tional se­cu­rity—es­pe­cially those that con­cern pres­i­den­tial power—would pose a prob­lem for a con­ser­va­tive Court. Con­ser­va­tives are torn be­tween two com­pet­ing views: one that grants the pres­i­dent near-monar­chic au­thor­ity when it comes to na­tional se­cu­rity, and an­other that al­lows the pres­i­dent to be con­strained by Congress. To com­pli­cate mat­ters fur­ther, they have tended to sup­port pres­i­den­tial power when the pres­i­dent is a Repub­li­can, while sharply lim­it­ing it when the pres­i­dent is a Demo­crat.

This con­flict was on view in Ziv­otof­sky v. Kerry (2015), an im­por­tant case about whether the pres­i­dent or Congress would have the fi­nal word about the pass­ports of US cit­i­zens born in Jerusalem. Congress wanted pass­port bear­ers to be able to list their coun­try of birth as Is­rael; the Obama ad­min­is­tra­tion wanted to main­tain the sta­tus quo, in which the coun­try of birth was given as “Jerusalem” to avoid tak­ing a stand on the city’s sta­tus. Ul­ti­mately, the Court held that the pres­i­dent could ig­nore Congress’s com­mand to al­low Is­rael to be des­ig­nated be­cause his au­thor­ity in for­eign af­fairs in­cludes the right to rec­og­nize for­eign states.

Un­sym­pa­thetic to the Obama ad­min­is­tra­tion’s as­ser­tion of ex­ec­u­tive power, Scalia dis­sented. He pointed out that un­der the es­tab­lished doc­tri­nal frame­work, the pres­i­dent’s power is at “its low­est ebb” when Congress has di­rectly spo­ken. Thomas, also un­sym­pa­thetic to Obama, dis­sented separately. But he in­sisted that the ex­tent of the pres­i­dent’s in­her­ent pow­ers, as the Con­sti­tu­tion orig­i­nally de­fined them, should be de­ter­mined by look­ing at the royal pre­rog­a­tives that the Bri­tish king in prin­ci­ple pos­sessed in the era of the found­ing.4

Out­raged, Scalia ac­cused Thomas of con­struct­ing “a pres­i­dency more rem­i­nis­cent of Ge­orge III than Ge­orge Wash­ing­ton.” Their dis­agree­ment went back to 2004, when Scalia and Thomas split sharply over whether the Bush ad­min­is­tra­tion could de­tain an Amer­i­can cit­i­zen with­out trial on sus­pi­cion of af­fil­i­a­tion with al-Qaeda. Scalia thought this vi­o­lated the ba­sic right to habeas cor­pus; Thomas be­lieved it fell within the pres­i­dent’s na­tional se­cu­rity power. A con­ser­va­tive post-Scalia Supreme Court would prob­a­bly rule quite dif­fer­ently on pres­i­den­tial power and na­tional se­cu­rity based on who the pres­i­dent was. It would be likely to de­fer to a con­ser­va­tive pres­i­dent, de­ploy­ing Thomas’s the­ory of the strong ex­ec­u­tive. If a lib­eral pres­i­dent tried to de­ploy uni­lat­eral ex­ec­u­tive power, how­ever, the Court’s con­ser­va­tives might well fall back on the Scalia line of skep­ti­cism, in­sist­ing that Congress’s com­pet­ing pow­ers are nec­es­sary to con­strain the pres­i­dent. A Demo­cratic pres­i­dent might then end up blocked by a con­ser­va­tive Court un­less the Democrats con­trolled Congress. If Congress and the pres­i­dent agreed, even a con­ser­va­tive Court could be ex­pected to de­fer to them on mat­ters of na­tional se­cu­rity. Con­ser­va­tives might in fact be more def­er­en­tial un­der these con­di­tions than a lib­eral Court would be to a Repub­li­can pres­i­dent and Repub­li­can­con­trolled Congress, be­cause they have at hand the Thomas ar­gu­ment for rad­i­cal def­er­ence to the ex­ec­u­tive, which no lib­eral jus­tice en­dorses. Such def­er­ence seems es­pe­cially likely to oc­cur if Trump has ap­pointed the jus­tices who con­trol the out­come.

En­vi­ron­men­tal reg­u­la­tion is the fi­nal area in which an ac­tivist con­ser­va­tive Court could have a sub­stan­tial ef­fect. The source of the Court’s power here lies in the re­la­tion­ship be­tween en­vi­ron­men­tal leg­is­la­tion and reg­u­la­tion. In gen­eral, Congress has cho­sen to deal with the en­vi­ron­ment by pass­ing very gen­eral laws and del­e­gat­ing the au­thor­ity to im­ple­ment them to reg­u­la­tory agen­cies like the En­vi­ron­men­tal Pro­tec­tion Agency.

An ac­tivist con­ser­va­tive Court could make life dif­fi­cult for a Demo­cratic EPA by block­ing reg­u­la­tion di­rectly, declar­ing it “ar­bi­trary and capricious” un­der the Ad­min­is­tra­tive Pro­ce­dure Act. The courts are only sup­posed to use this tool to block ac­tions that are gen­uinely ir­ra­tional or that ex­ceed the agency’s le­gal au­thor­ity; but the Court could de­ploy it much more ag­gres­sively than has been done in the past. In prac­tice, en­vi­ron­men­tal­ists could try to get around such a ju­di­cial bar­rier by lob­by­ing Congress to pass laws di­rect­ing that a spe­cific reg­u­la­tion be adopted, rather than del­e­gat­ing so much au­thor­ity to the EPA. If public opin­ion were strongly enough in fa­vor of in­creased en­vi­ron­men­tal pro­tec­tion, a Demo­cratic Congress and pres­i­dent could prob­a­bly get some reg­u­la­tion adopted de­spite ju­di­cial re­sis­tance. A con­ser­va­tive Court could also im­pede en­vi­ron­men­tal re­form by sec­ondguess­ing agen­cies’ in­ter­pre­ta­tions of fed­eral law. Ac­cord­ing to what is known as the “Chevron doc­trine,” when fed­eral law is am­bigu­ous, the Court will de­fer to an agency’s in­ter­pre­ta­tion of the law pro­vided it is rea­son­able. This doc­trine is in­tended to give sub­stan­tial power to agen­cies, bind­ing the hands of judges who might oth­er­wise dis­agree with the agen­cies’ poli­cies.

To­day Chevron is un­der at­tack, most promi­nently from Gor­such, who has writ­ten dis­parag­ingly of the idea that courts would have any­thing less than full con­trol over the mean­ing of fed­eral statutes. This is bad news for en­vi­ron­men­tal reg­u­la­tion—and that is al­most cer­tainly part of the point. A Court that does not de­fer to an agency’s in­ter­pre­ta­tion of fed­eral law can sub­sti­tute its own pol­icy judg­ment for that of the agency. If that agency is the EPA, and its judg­ment is be­ing used to ex­pand en­vi­ron­men­tal pro­tec­tion, then a con­ser­va­tive Court that over­turned Chevron or weak­ened its rule of def­er­ence would stand ready to re­verse the agency’s course.

The only so­lu­tion for en­vi­ron­men­tal­ists would be to pass new laws that would ex­pressly en­act reg­u­la­tion, rather than del­e­gat­ing reg­u­la­tory au­thor­ity to the agen­cies. That would be hard to do, es­pe­cially given the es­tab­lished norm that agen­cies rather than Congress do most en­vi­ron­men­tal reg­u­lat­ing. But if a con­ser­va­tive Court sys­tem­at­i­cally uses statu­tory in­ter­pre­ta­tion to block en­vi­ron­men­tal reg­u­la­tion, that di­vi­sion of la­bor may have to change. In­stead of mak­ing ar­gu­ments to the EPA or other agen­cies, en­vi­ron­men­tal­ists would have to di­rect their ef­forts more di­rectly to­ward Congress it­self.

A durable con­ser­va­tive ma­jor­ity on the Supreme Court could, then, im­pose sub­stan­tial changes in Amer­i­can rights and law, es­pe­cially in ar­eas where lib­er­als have in re­cent decades re­lied on courts and ad­min­is­tra­tive agen­cies rather than Congress or state leg­is­la­tures to im­ple­ment pro­gres­sive poli­cies. Those who op­pose such changes should be­gin con­sid­er­ing the ap­pro­pri­ate po­lit­i­cal re­sponses, such as choos­ing which is­sues should be tar­geted for grass­roots or­ga­niz­ing and lob­by­ing state leg­is­la­tures and Congress. Ul­ti­mately, Democrats can­not rely on judges for so­cial progress. A func­tion­ing lib­eral democ­racy re­quires a lib­eral pop­u­lace that is pre­pared to vote for the poli­cies it wants.

Clarence Thomas

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