Strict Scrutiny - AITA? SCOTUS Edition

Episode Date: January 22, 2024

Last week, the Supreme Court heard oral arguments in a pair of cases that threaten to topple four decades of precedent about federal agencies' authority to interpret statutes. Leah, Melissa, and Kate recap the arguments and outline the Koch-funded basis for the Supreme Court's latest power grab.Read the NYT's reporting on the funding behind the conservative quest to overrule Chevron Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Kate Shaw. I'm Melissa Murray. And I'm Leah Littman. And as promised this week, we are going to go deep on the court's cases,

challenging the power of administrative agencies. We keep our promises, just like the conservative legal movement is keeping their promise to overrule Chevron. Though I should say, it's not actually possible to go that deep on these cases because the arguments aren't that deep. The arguments were actually some of the more disingenuous and transparently bad ones I've heard. So we'll talk about that. And then at the end, we'll touch on some court culture as well. And the arguments were bad, but we listened to every single painful minute of them. It was torture.

So you don't have to. Right. We are going to subject you to some of it, but a very condensed overview of like highlights and lowlights and really almost exclusively lowlights. But before we do that, I actually wanted to make one quick point before we dive into the recap, which is that we still do not have at the moment of our recording.C. Circuit's opinion on Trump's immunity claim. And I just want to put out into the universe that they really need to issue that opinion now. Why, Kate? They have all the time in the world. It's not like the country is waiting for a decision or accountability or anything.

The problem is I think this is the ordinary judicial timeline is like a lot of contemplation, a lot of agonizing over punctuation. Like judges are used to getting to take it slow and that is not an option here, right? So the oral argument in this case was January 9th. It already is the case that the March 4th trial date that was originally contemplated looks virtually impossible and Chutkin maybe seems to be signaling something along those lines anyway. But I guess the point is, this is not a normal case. The D.C. Circuit panel needs to issue their opinion. And I'm just nervous that they do not understand what they are dealing with here. And the paramount importance of them moving quickly, just like the longer it takes, the

greater my fear that the courts are simply not up to the task before them. And maybe that was already obvious, and I'm just slow to realize it. But again, to the universe, and specifically to the panel of the DC Circuit, it's bin time. I'm not saying anything. So DC Circuit, you can prove us wrong, get it done. All right. So now onto the recaps. First up, the case is about Chevron deference, which is about the circumstances under which federal courts should defer to agency interpretations of ambiguous statutes and, relatedly, this court's latest power grab. Before we get into the precise issue or issues in the cases, we wanted to provide some context

about the stakes here, like who stands to benefit from the court's likely decision. And this will be shocking, I know, but the New York Times did some reporting about how petrochemicals billionaire Charles Koch, you remember him, he's one of the Koch brothers. Anyways, the story is about how Charles Koch's shadowy network is partially behind one of the latest challenges to the power of administrative agencies to issue regulations. So basically, the New York Times ran a piece on the campaign behind the relentless quest to overrule Chevron and the relentless campaign to find the perfect case or cases to do so. Cases whose facts might obscure or conceal

the larger political agenda that's actually at work here. And so the reporting focuses not on the relentless case, but on Loper Bright. So that's the case, Loper Bright versus Raimondo. That was heard in the D.C. Circuit. It's the case that Justice Jackson is recused from hearing, so she only appeared in the oral argument for Relentless. So she's not on Loper Bright, but it'll be, I think, like SFAA versus Harvard, where one single decision will be released on both of these cases, and she will be allowed to participate. So look for Relentless at the end of June. But we're talking about Loper Bright, and so is the New York Times. Right. So in this reporting about Loper Bright, and this case, like the Relentless case,

is actually about whether a federal agency can interpret a federal statute to require commercial fishing operations to bear the cost of federal monitors who travel on their boats in order to ensure that the boats don't overfish. And the case has been framed as kind of a David versus Goliath fight, where you have like mom and pop fisheries taking it on the chin because the federal government wants them to pay for the privilege of being regulated. So that is very much how the plaintiffs want this case to be presented and understood. And you can understand why the plaintiffs are so invested in this mom and pop narrative, because it's very appealing, right? So the little guy getting crushed by big government,

you know, very Kelo versus City of New London, very libertarian chic, if you can call it that. But as the New York Times reveals, these mom and pop fishermen are not necessarily your average mom and pop fishermen, because they're being represented by some very fancy lawyers. So white shoe lawyers who happen to be litigating this case pro bono, which is to say that they are not charging these mom and pop fishermen for their representation, which raises a question. Whose deep pockets are actually bankrolling all of this? And the Times reporting has some answers. So some of the plaintiff's lawyers work for a public interest law firm, cause of action, that the New York Times reports does not disclose its donors and does not report having any employees. Weird. Weird.

Surprising. But here is a biggie. have appeared in court filings representing Koch Industries. Pure coincidence, I am sure. But in terms of the funding, the Times reports that the law firm litigating the case, again, cause of action, has had two cash infusions, both from Mr. Koch's Stand Together nonprofit, including more than $4 million in 2019 and over a million dollars in 2020. Because freedom isn't free, y'all. Sometimes you need a billionaire patron for your freedom. So let's just chew on this for a minute. The folks litigating

this case have been pressing the narrative that this is about small businesses getting hosed by federal regulators. But weirdly, there's a man behind the curtain orchestrating all of this, and he just happens to be a billionaire who is likely to profit handsomely when the federal government's regulatory powers are curtailed. It's almost like he has a real stake in this. Really, really weird. The Times piece that reports this recounts a somewhat relevant, self-aware, prescient, I don't know, statement made at a November forum hosted by the Federalist Society. And this statement was made by a senior attorney at the Pacific Legal Foundation, another organization that has received money from the Koch Network.

The lawyer says, quote, to successfully wage such a campaign, you need three things, money, legal personnel, and a judiciary that's receptive to strategically selected and timed legal arguments, end quote. The Times further continues that at the event, a lawyer who had argued the original Chevron case said, quote, congratulations, but to me, this is clothing, nakedly private interest in highfalutin constitutional arguments. It really sets it up well. Charles Koch on the fishing boat. Wielding highfalutin constitutional arguments. Yeah, that's basically the story.

So with that background and context in mind, let's now shift to explaining the general issue in the cases and how the argument unfolded. And as we said in our last episode, these cases are about a fishing regulation, but they are more fundamentally about the future of a 40-year-old precedent, Chevron, that has long structured the relationship between courts and agencies and the laws passed by Congress. So briefly, Chevron said that when you're dealing with an ambiguous statute, courts should defer to agencies reasonable interpretation of that statute. That is,

if judges look at a statute and they conclude, you know, the law is just not yielding an obvious answer here, and the agency has arrived at a reasonable interpretation based on the agency's expertise and knowledge, then the agency's interpretation of the law is supposed to prevail. There are a lot of statutes that Congress passes that are ambiguous, either because the statutes are just really big statutes that are meant to apply going forward to circumstances that Congress can't really contemplate at the time that they're drafting. Congress can't see around corners. So they draw these statutes, they make the terms very open textured, and it's going to require some interpretation. So in those circumstances where the statute is ambiguous, who gets to decide what the terms mean? Is it going to be the judges

or is it going to be the agency? Or is Congress just supposed to write everything with the kind of specificity that's necessary to make the statute work in an everyday environment? So for example, take the Clean Air Act, which has some general direction to the agency to make regulations about things like particulate matter. That seems like something you would want experts in particulate matter to make judgments about, as opposed to your average congressperson, like Marjorie Taylor Greene, for example, or even your average federal judge, the kinds of questions for which you really need expertise. Suppose, for example, there's a question about whether the FDA wants to regulate a particular kind of food processing procedure. Is that something you want Congress to do, like Congress who dines out at fancy steakhouses, or something that you want to have people who are expert in food processing actually determine? So that's the kind of judgment and expertise that Chevron is supposed to shift from Congress and the courts to the agency itself. Overruling Chevron would strip that power from agencies, the power to resolve what a law means when it's ambiguous, and hand that power over to the Supreme Court, which, of course, would clearly mean less regulation and more corporate profits.

And you wonder why the Koch billionaire network is involved. So let's start with this Kagan hypothetical, which will come out in a string of clips, but like the examples Melissa rattled off, will encapsulate the issues in the case with respect to a particular set of issues. Is a new product designed to promote healthy cholesterol levels, a dietary supplement or a drug? Sorry, can you give that one more time? A new product designed to promote healthy cholesterol levels. Is it a dietary supplement, that's a statutory term, or a drug? You think that the court should determine whether this new product is a dietary supplement or a drug without giving deference to the agency,

where it is not clear from the text of the statute or from using any traditional methods of statutory interpretation whether, in fact, the new product is a dietary supplement or a drug. You want the courts to decide that? There are just some times where you look at a statute and the most honest reading is that there's a gap there because of the limits of language, because of the limits of our ability to predict the future. And so who fills that gap? That's a specific example of how this issue would play out on the ground. And Justice Kagan also voiced how this issue will play out in a more general sense, getting at the stakes to which we alluded in our capsule summary. The issue we're deciding here is more like that,

is more like the countless policy issues that are going to confront this country in the years and decades ahead. Will courts be able to decide these issues as to things they know nothing about? Courts that are completely disconnected from the policy process, from the political process, and, you know, that just don't have any expertise and experience in an area? Or are people and agencies going to do that? That's what this case is about. So where to go in saying how this argument went? Again, just to reiterate at a high level, it went bad. It went really badly. The Republican justices are obviously intent on eliminating Chevron entirely or whittling it away

to almost nothing and insisting that courts get to decide what the law means and will go with an agency's view if they find it persuasive, which just means they agree with the agency. The Republican Justice also suggested there might be some category of questions that a law could designate as policy questions for an agency to resolve, but it's not clear what those would be. And so the Democratic appointees were kind of left to plead and beg for crumbs that they would only use Chevron where a law was really, really, really super ambiguous, where in Justice Kagan's words, the law just ran out or didn't yield an answer to the question that arose. But the Republican justices' arguments for nuking Chevron were just so embarrassingly bad. There's no other way to say it.

But let's at least get them on the table. So first, the chief justice suggested, what's the big deal with overruling Chevron? We don't even use it anymore. I don't know her. I don't know Chevron. Chevron, don't know her. Here's that clip. How much of an actual question on the ground is this? I saw some study that said we haven't relied on Chevron for 14 years. And Judge Keflige has written, he's been a judge for 10 years, he's never invoked Chevron step two. So first, I don't know if his memory is actually going or if this was

just like a bit to make it sound longer than it was. But it hasn't been like, it's been eight years, it hasn't been 14 years. And that's like, not an enormous difference, but for some reason, really irked me. And that was not the only time Roberts, you know, either seemed to be. If you had to work with Neil Gorsuch, Brett Kavanaugh, and Sam Alito every day, eight years would feel like 14 years. Or it would just give you brain worms and you would be unable to remember sort of simple things like that. Who knows what the explanation is?

But I think that maybe more important, that whole premise just reeks of bad faith, right? Like, yes, says Roberts, we know you've wanted to overrule Chevron for a while, and so we have limited and refused to apply it. And so let's just pretend it doesn't exist anymore, and maybe this case can go away. And the court's neglect of Chevron does not mean the doctrine doesn't matter, doesn't mean that stripping this power from agencies won't be a big deal, and also is just so imperious in its disregard for the lower courts who are stuck with this kind of zombie precedent at the moment where everyone knows the Supreme Court is really hostile to Chevron, and yet it hasn't overruled it. And so the lower courts are duty-bound to continue to apply it, but no one has clear guidance about what the law is.

And Roberts is just like, huh, let's just pretend this whole Chevron thing never happened. So that was one of the many, many lowlights of the argument, I thought. Well, I think we ought to emphasize that this is not the first time that the Roberts court does this move where it ghosts a precedent and then turns around and says later, obviously, this precedent has been abandoned, right? So we saw this kind of BS in Kennedy versus Bremerton School District, where the court made this huge thing about how the Lemon versus Kurtzman test had basically been abandoned, but failed to mention that it had been abandoned because the court abandoned it. Like the court stopped using Lemon. And the court also did this in West Virginia v. EPA, where it didn't invoke Chevron

at all, even though Chevron was really relevant. And so, you know, when he had this list of questions, all I was thinking about was like, you're the ones who ghosted it. Like, you did this. You abandoned Chevron, not everyone else. And taking a different tack, Paul Clement, who argued in the Loper-Bright case for the fishermen, suggested that the fact that the court has disagreed with agencies in a number of cases means that Chevron has somehow gone awry and agencies are out of control, when really, it may actually just be evidence that the court is super anti-regulation and anti-agency, and that's

really what's going on here, my dude. And once you recognize that, you recognize the problem with deferring at a certain point to the agencies. And let's look at the track record of the agencies before this court. If they are so expert, they should be able to persuade you in case after case that they're getting these statutes right. By my count and by the Cato Institute in their amicus brief, since the court last cited Chevron, the administration is batting about 300 in these cases. So expertise is not all what it's cracked up to be. And that's true even in the most complicated cases. Look at the American Hospital Association's case. The reference to American Hospital Association case, you know, that was a unanimous case, just really annoyed me, because that's just another example where you had a group pushing to limit or narrow Chev apply, the Democratic appointees just join an opinionement is doomed, and in many ways,

lays the groundwork for a later kill shot. You cannot negotiate with these people. On the other hand, I guess it prolonged Chevron for two years, if you really thought they were going to overrule it in American Hospital Association. But again, you are still giving them things that they will cash in on later to give themselves cover. So Justice Gorsuch turned the chief's premise that Chevron is no longer in use, whether in this court or in the lower courts. And he transformed that into a claim that there is somehow confusion in the lower courts about Chevron. To which I say, yes, sir, there is actually confusion. But you're again, the source of the confusion by courts about Chevron. To which I say, yes, sir, there is actually confusion. But

you're, again, the source of the confusion. By never using Chevron, even when it's reasonable and sensible to do so, you have created this confusion. And by coming up with nonsensical reasons not to apply Chevron, you have created this confusion. I had a thought, which is the Republican justices need to submit to an am I the asshole kind of thing? Like, am I the person that created this confusion? Am I the person that ghosted Chevron AITA, right? Supreme Court Justice version? The answer is always yes, you're the asshole. Right. Okay. Correct. They still need to go through the motions. Okay. Okay. Fair. Like the Reddit's always useful, even if you know what the answer is going to be right but it reminded me leah of um when justice alito said in dobbs that roe and casey had

generated confusion because there had been split decisions about how to apply those two cases and it was really like the decisions were split because the Republican justices and judges refused to apply in a sensible way what Roe and Casey said, right? So, and Leah, you and Dan have made this point in your work on the major questions doctrine. The court and its minions basically get to decide what they think is a major question

by ginning up controversy around it, confusion around it. And in doing so, they generate the kind of jurisprudential confusion that throws the entire doctrine into question and then allows the court to arrogate this power to itself to solve it. Okay, so there are other disingenuous arguments. And the next one I want to highlight is, at various points, various justices and advocates suggested, and I am not making this up, that Chevron is the reason for congressional gridlock and the reason Congress doesn't pass major legislation. I'm going to really quickly talk about listening to this argument, which, as we said earlier, was kind of interminable. I'm a runner and I now have a treadmill in my house.

I'm not a big treadmill runner and I don't love running on a treadmill, but I'm learning how on cr crummy days, it's very snowy in New York. So I was like, I have a lot of arguments to listen to. I'm going to go for a run and listen to the argument. So I put on headphones and listened and ran. And then I was like, I'm going to end up running a marathon. This is insane. Like they're still going. So I ran five miles, which is like long for me on a treadmill. And then I was like, okay, I guess I give up. But I think I truly would have run about 15 miles if I had actually just run through the whole argument. But I was shouting at a few points, including when the suggestion was made that Congress would work great, be a highly functional body, if not for Chevron. Chevron is the problem. So, you know, I don't know, maybe Googling like the filibuster would be useful if you're trying to genuinely

understand the reason that Congress is not, you know, legislating all the time. In any event, here is Paul Clement with a straight face blaming Chevron for congressional dysfunction and also trying in the same breath to bootstrap an anti-Chevron argument from the court's recent and totally lawless major questions cases. So let's play that clip here. And that's what 40 years of experience has shown us. And 40 years of experience has shown us that it's virtually impossible to legislate on meaningful issues, major questions, if you will, because right now roughly half of the people in Congress at any given point are going to have their friends in the executive branch. So their choice on a controversial issue is compromise and forge a long-term solution at the cost of maybe getting a primary challenger, or instead just call up your buddy who used to be your co-staffer in the

executive branch now and have him give everything on your wish list based on a broad statutory term. And my friends ask for empirical evidence. I think you just have to look at this court's docket. It's been one major rule after another. It hasn't been one major statute after another. I would have thought Congress might have addressed student loan forgiveness if that were really such an important issue to one party in Congress. I would have thought maybe they would have fixed the eviction moratorium. I could go on and on on these issues. They don't get addressed because Chevron makes it so easy for them not to tackle the hard issues and forge a permanent solution. Just want to add that this is the same man who insisted that NYU does not have campus.

Still on my list, Paul. Still on my list. Yeah, Melissa's not going to let that go. And I think that's right. I hold a grudge like a microphone. I'm a Virgo. Like Neil Gorsuch. Speaking of, I mean, this really was Neil Gorsuch's origin story case. And we'll get into that more later. We can we can. But just briefly on that Clement clip we just played, I just I forgot to also mention that in addition to blaming Chevron for congressional dysfunction and also somehow suggesting the major questions doctrine is evidence of that, he just slips in this anti-science dig, which is like, oh, these agency lovers want empirical

evidence. How about this for empirical evidence? And I felt like what he was saying was like, this is empirical evidence. We have six votes. That is math. That is empirics. I kind of felt like that was actually the thrust of his point. Bro math. Boom. Yes. At other points, you know, the Republican justices indicated that Chevron is bad because it allows democracy to happen. Specifically, the doctrine allows presidents to change policies. So here is presidential power enthusiast Brett Kavanaugh on this point. But the reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in, whether it's

communications law or securities law or competition law or environmental law, and goes from pillar to post. It's like Professor Pierce wrote, and he had been a fan of Chevron. Now he's not because he says it's a source of extreme instability in the law. That's his phrase. And it just seems like you just pay attention to what happens when a new administration comes in at EPA, at SEC, at FTC, you name it. It's just massive change. That is at war with reliance.

That is not stability. And so I think to hold up stability and reliance is a little tough given just watching how it operates every four years. I really love this because it's basically like Chevron would have been fine with us if President Obama had never been president. Again, these are the same people who continually bleed that elections have consequences, but apparently not for them. So well, and who are also generally speaking, extremely enthusiastic about executive power. Like, have the justices, has Brett Kavanaugh and have his fellow travelers read their own removal cases?

Like, these cases are about the importance of the president being able to remove officials precisely so the president can control how those officials are doing their jobs and the policies the officials make. The entire premise of this question is that there should be and has to be the potential for policy change between administrations and presidents with different policy goals. So I'm not sure how he holds these ideas in his mind at the same time, but he somehow seemed to be trying. And maybe the answer is just, it is good for presidents to be able to remove subordinate officials and to control the direction of policy if there is an R after the name of the president and only under those circumstances. Like maybe that's just the explanation. I kind of thought this line of questioning seemed to be a shot across the bow at the very idea of delegation, which would be a more fundamental attack on the administrative state even than the attack on Chevron. So the idea that Congress can ever give significant powers of any sorts to agencies, like that's the idea of delegation. And if it can do that, then the changes that Coach K is talking about are going to happen,

not because of Chevron, but just because of democracy if delegation is permitted. And so if the fact of policy change is this troubling, that suggests to me that overruling Chevron is not in any way the end game. It's just a way station, as it were, on the path to really, really limiting, if not eliminating, the ability of Congress to give significant powers to agencies at all, like delegating real powers to agencies at all. Making it harder to be a democracy? Is that your point?

It can be a democracy where we vote for people. They just can't do anything, right? Like the people we vote for. Yeah. I mean, final point on this Kavanaugh question, which is that the idea that wild swings are a real problem in agencies and the remedy is stripping agencies of their powers and handing those powers to courts is kind of rich as a suggestion that someone could make with a straight face in the very courtroom where they just overruled Rowan Casey and the affirmative action case Grutter

and Lemon, which you were just talking about, Melissa, and like the other precedents that the court has overruled and abandoned, including what it's going to do in this very case. So stability mandates courts taking this power in the face of that recent history. Like there's just some real chutzpah there. I believe Justice Scalia might have said it takes real cheek. He would have. Stability obviously means we just declare the Republican Party platform to be the law and just leave it there. It would be stable.

Yes. Have that advantage. So Justice Jackson also realized that there are some real inconsistencies here with regard to the interest in democracy. Here is Justice Jackson responding to Coach Kavanaugh, noodling with the notion that democracy is just bad, actually. After all, you know, taking into account the policy goals of the new administration reflects a democratic structure where we have the new administration being elected by the people on the basis of certain policy determinations. I guess my concern is, I suppose, judicial policy making is very stable, but precisely because we are not accountable to the people and have

lifetime appointments. The other thing that was really pronounced in this argument was just how much fun the Republican justices were having. So much laughter. And it actually really got to me at one point. They were just having such a good time. So we put together a little bonus reel of clips to give you a sense of how unbelievably hilarious it is to deliver a huge win to billionaire corporate interests whilst also hobbling the prospect of effective government. And let's hear it. You know, judges are used to deciding things. And when they get around to doing it, they tend to think what they've come up with is not only the best answer,

but it's the only answer. And I just wonder how often this comes up. I think Brand X is a recipe for instability, isn't it? Because each new administration can come in and undo the work of a prior one. They're all reasonable. I mean, my goodness, the American people elect them. Of course they're reasonable people. What's wrong with that? And if that's not correct, because I don't think you're going to agree with that,

how would you define when the law runs out short of that? But yet this court had no trouble unanimously saying that you can't have hospital chain-specific pricing without first doing a survey. Well, I don't know whether you can say we had no trouble. I was going to say that. No one was troubled to write a dissent. Let me put it that way. This is their Roman Empire.

They are truly having the time of their lives. And at one point, it seemed like Sam Alito decided to institute a new price for Supreme Court arguments. And that is a tax on your soul, because he will force you to grovel before him and tell him how awesome he is, because he one is defending us, not even the organized bar. So now he makes advocates do it when they are arguing before him representing clients and can't tell him to F off. So here's that clip, which I know we have a lot of thoughts on. Mr. Martinez, would you agree that one of the reasons why Chevron was originally so popular was concern that judges were allowing their policy views, consciously or unconsciously, to influence their interpretation of the statutes in question? Yes.

Why was that fear unfounded? Why do you think now that the fear was unfounded? The shorter Sam Alito was basically, can you tell us how much better we are today and how much less policy we do today than the liberal judges of the battle days? And Martinez was perfectly happy to supply what Alito was looking for. Of course. And it's so Trollito, right? Since obviously everybody knows overruling Chevron and seizing all this power to the court is going to result in more judicial policymaking, which we'll cover later. And yet Sam Alito insists the opposite. Please take away Jason Kelsey's pain and give it to Sam Alito. But Alito demanding the lawyer before him say how awesome the court is now and how free... Kiss the ring. Kiss the ring. Right. Kiss the ring

reminded me of the exchange from the Fifth Circuit in the medication abortion case, you know, where a court of appeals judge demanded the lawyers challenging Judge Kazmirik's judicially ordered nationwide ban on medication abortion, demanded that they apologize for the overly critical mean things they had said about Judge Kazmirik in their brief. And again, because they're arguing their case, they are not in any position to disagree. And the Fifth Circuit had previously, you know, in a case about the Affordable Care Act, demanded federal government lawyers write a memo affirming the federal courts could strike down federal laws after President Obama suggested it was problematic for courts to strike down the Affordable Care Act willy-nilly. And again, this is now the price for being a lawyer in these circles and

participating in these arguments. You have to kiss the ring and profess fealty and decline to criticize the courts, and they will demand you get on the record to do it. I actually thought that this colloquy was one of the most telling exchanges in this argument. And it requires a little context to sort of get at why I think it's so telling. So Chevron was decided in 1984, when the EPA was governed by the Reagan administration. And the interpretation of the statute that the EPA was championing was actually very friendly to industry. So it was a deregulatory interpretation. And not surprisingly, Chevron was cheered by conservatives and other deregulatory types. And so what Justice Alito is basically asking in this exchange is, what changed here? Why do conservatives no longer have faith in agencies in the way that they did in 1984, when Chevron was a decision to be celebrated? Well, one answer is that presidential administrations change. So there's no assurance that the agency will always be in a deregulatory

posture. So CEG, the Obama administration. But Martinez in his answer actually alluded to what I think is the real reason that Chevron and agency deference is so out of favor. And that's the existence of a new cadre of lower court judges. So Martina said that now lower court judges are actually better at statutory interpretation than they used to be. I mean, this is your point, Leah, about the bad old days, I guess. But I would wager that what's really going on here is that it's not that they're better at statutory interpretation, like they've gone to judge school and gotten better at statutory interpretation. It's that the lower courts are now flooded with movement conservative judges who are likely to be more dependable on the deregulatory project

than agencies whose priorities will oscillate from administration to administration. That's the change. The change is that the conservative legal movement was successful in capturing the courts. So of course, Chevron had validated a deregulatory interpretation that had actually been issued by the Reagan EPA. That was an interpretation promulgated by an EPA led by da da da da da, and Gorsuch Burford, Neil Gorsuch's mom. And so Justice Kagan pressed the advocate in relentless, well, if we overrule Chevron, does that mean Chevron itself was wrong and the Reagan EPA was incorrect? To which the advocate responded with this chef's kiss, perfect little nugget. We think that the decision in Chevron

was reflected the best interpretation with much respect to Justice Gorsuch's mother's EPA. Neil, your mom was perfect. Your mom was amazing. She did everything right, just like you. Villain origin story. I need to try to find from somebody in the courtroom if there was any visible reaction on, because Neil clearly has so many feelings about the administrative state, many of which are traceable, not necessarily to this particular regulatory effort, but potentially to the contempt proceedings that led to the ouster of Ann Gorsuch Burford from the EPA after a protracted investigation. I mean, we could probably spend hours on this.

But also, can I just say the idea that it was the best interpretation of the language of the Clean Air Act amendments, which literally just said like major stationary source. And the question was, did that mean like a full plant or a single smokestack? And you know what? No one freaking knows. No one knew in Congress. The agency just took a look and made a defensible and policy-laden judgment. And of course, it was the Reagan administration. And so the policy judgment was one that was pro-industry and not pro-environment. And the court said, okay, but for Martinez to say, we're basically denying there was policymaking there. This was just the best interpretation of these words was so preposterous. I couldn't believe he said it with a straight face.

You know, Kate, you're just, you misunderstand. Gorsuch's mom has got it going on. And so does Neil, too. Fountains of Wayne. Seriously, do you remember that guy who did textual healing? I hope he's listening to this and we'll do gorsuch's mom and a whole thing honestly i thought that the cavanaugh track the oh yeah that that that genius genuine genius could also take leah's language and do something

beautiful with it one note on the cavanaugh fur track that was amazing i agree there was a missed opportunity to put it over Britney Spears work bit work. So it could end with work, bitch, small notes. We're happy to accept addenda revisions, you know, additional musical offerings. All right. So there were, don't worry, other moments when the justices be clowned themselves. I already mentioned Roberts' inability to recall whether it's been seven or eight or 16 or 17 years since the court cited Chevron. Leah, I think, offered a plausible explanation, which is that time really, really stretches when you're sharing office space with Sam Alito and Neil Gorsuch. But here's another clip of him doing just that. Counsel, I'll ask you the same question I asked your friend.

You began by saying Chevron is foundational. We get a lot of statutory interpretations from agencies. And I don't know whether it was 14 or 16 years, we haven't relied on Chevron over that time. I mean, have we overruled it in practice, even if we've had to leave the lower courts to continue to grapple with it? Alito had an unexpected note of anti-formalism and statutory interpretation that we have in our statutory interpretation toolkit are like the Enigma machine. And so we have these statutes and they're sort of written in code and we run them through the Enigma machine. And abracadabra, we have the best interpretation. Do you really think that's how it works?

That was refreshing i think this was a reference to the alan turing enigma computer from the imitation game so is just as alito outing himself as a cumberbatch is he you know that i think he would go up in my estimation i mean like if you like benedict cumberbatch like we can talk yes we have, like, there's room for growth here. In all, the upshot, it seems, is that the conservative justices are going to eliminate or substantially narrow Chevron in one of several ways. So by saying courts should be more hesitant to apply it, or by saying that it doesn't apply to, quote quote unquote legal issues, which would cover most of the domains in which it currently applies, or by saying that it doesn't

apply to controversial issues, which of course would give the court a lot of latitude to determine what exactly is a controversy. But who knows here, but I think we can at least say, Chevron, we hardly knew ye. Indeed. And all of the questions about what a statute requires of regulated industries will now be answered by Neil Gorsuch and the Supreme Court, who hate regulation and will therefore say that statutes impose fewer obligations and regulations on industry and fewer benefits to clean air, clean water, public health, consumer protection, you name it. And there are just so many times this comes up. I thought the amicus brief by the American Cancer Society really

emphasized this very well when it noted that over the past year alone, the Secretary of Health and Human Services and Center for Medicare and Medicaid Services have published, on average, a new notice of proposed rulemaking approximately every two weeks, you know, on topics ranging from proposed drug misclassification rules to annual payment rates for skilled nursing facilities, and clarifying that newly developed powered support devices can qualify as braces for reimbursement purposes. And you think the federal court should be deciding all of that? Or that Congress will get its act together to make those decisions? I mean, seriously. It's a recipe for no regulation ever happening, but that, of course, is the point.

So we have, maybe not surprisingly, a few more things we want to say about the cases and the issue. But maybe to kind of refocus us on the stakes, we want to play part of the seriatim exchange between Justice Kagan and Solicitor General Elizabeth Prelogar, who represented the federal government, you know, very, very well, as she always does, about why this issue matters and how it is going to play out. There's been a fair bit of talk, General, about how because you don't have a formula for saying when there's a gap or ambiguity so that you go to step two, or because judges may have different tendencies, you know, which might be temperamental as much as anything else to find ambiguity. Because of that, there's going to be some variability.

And it's hard to argue that there will be some variability. But could you talk about the variability in the alternative scenario? Yes, and I think that this is a really important point to focus on, because as I was trying to say earlier, in a world without Chevron, it's not as though Congress is always going to speak clearly and it won't leave gaps or ambiguities in statutes. Genuine ambiguities where you apply the tools and at the end you are left with no certainty about what Congress was trying to do. And in that circumstance, in a world without Chevron, what we'll see is what Justice Alito was suggesting. The courts will have to go on and try to answer the question. But there are

800 district court judges around the nation. And I think it's fair to say they will likely have different takes about what to do in that circumstance and what to give greater weight to and how to ultimately fill the gap in administering the statute. And against that backdrop, let's also hear this clip from Justice Jackson underscoring the inevitable implication of empowering the courts to do more in this arena. I see Chevron as doing the very important work of helping courts stay away from policymaking. And so I'd like for you to sort of think of it through that lens and help me understand why, if we do away with Chevron's framework, we won't have a problem of courts

actually making a policy decision. And my concern is that if we take away something like Chevron, the court will then suddenly become a policymaker by majority rule or not, making policy determinations. So how can we avoid that? Justice Sotomayor also underscored at this point that we're basically licensing courts to be de facto legislatures. So let's hear her. It has to be two reasonable meanings. Assuming you make an assumption that there is a best answer. I don't know how you can say there's a best answer when justices of this court routinely disagree. And we routinely disagree at 5-4. Is the best answer simply a majority answer? I don't think so. I happen, when I dissent, to think the others got it wrong. And they often do.

But putting that aside, in those situations, there are two plausible, not merely plausible, there are two best answers. And the question is who makes the choice or helps you make the choice. And if the court can disagree reasonably and comes to that tiebreaker point, and it could be 51-49, it could be 52-53. If it's that close, why shouldn't the person with all of the qualities you spoke about, the entity with all of the qualities, expertise, experience, on the ground execution, knowledge of consequences, why shouldn't deference be given to that entity? And not to be outdone, Elena Kagan hit this theme again. Here she is. And, you know, judges should know what they don't know.

So as promised, some other random notes along the lines of what we were just talking about, judges knowing what they don't know and being humble. I wanted to highlight a passage from the federal government's brief in these cases from the relentless brief. So the federal government said, quote, the judicial branch's natural role at that second step that is of Chevron, quote, like that of referees in a sports match is to see that the ball stays within the bounds of the playing field. And they're quoting an article written by Peter Strauss. What does this recall? Oh, a certain infamous moment from somebody's Supreme Court confirmation hearing. Let's play that clip here.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench. Umpires? I don't even know Chevron. Whatever. Anyway, so on our preview, when we talked about this case before oral argument, Leah had suggested that she would be on the lookout for free-floating fairness concerns. And that was something that Paul Clement, who was the attorney for the fishermen in Loper Bright, was really focused on.

So in this clip, Clement is both invoking this free-floating fairness concern, but also positing this inherent adversity between the individual and the agency. As if when agencies regulate to protect the water and air and food, they are hurting rather than advancing the interests of the citizenry. My friends on the other side also talk about, you know, this is great because it leads to uniformity in the law. Well, I don't think that's an end in itself. Again, if it were up to me, if we think uniformity is so great, let's have uniformity and let's have the thumb on the scale inside of the citizen. So there was another part of the seriatim questioning that comes at the end of the argument during Relentless that I also wanted to flag. So Alito kept hammering a point that had come up a few times, which is he was kind of harassing the federal government about their inability, on his view,

to provide a precise, like, acontextual definition of ambiguity. But he basically was saying, you can't tell us exactly what ambiguity or ambiguous means, so it must be meaningless. And then he was making the point that normally, if we're deciding a case that doesn't involve an agency, and there's a statute involved, we just have to construe the statute full stop. And so we should do the same thing here. And while I thought Prelogger did a very nice job of responding that sometimes courts are the only decider, so they have to decide, but in cases where there's an agency, it's entirely different. And we understand Congress to have decided if it leaves a gap or an ambiguity to give the power to fill that gap to an

agency. But it just for some reason, this exchange made me think about this famous Cass Sunstein article in which he describes Chevron as the quote, counter Marbury for the administrative state. So if Marbury versus Madison is the case in which John Marshall asserts the power of judicial review and kind of announces that courts will decide what the law is. Chevron basically said with, you know, in the context of agencies, Chevron is kind of Marbury-esque because it gives agencies the power to say what the law is. And that's like overstated if it's understood in really broad terms. But in very narrow circumstances, Chevron does give agencies the power to say what the law is.

And I just had this moment where I realized this could be just a nightmarishly judicial supremacist opinion, which is like literally Marbury 2.0, which is like, we are the deciders of all questions. And just as we are the deciders of questions not involving agencies, there's no salient difference between what we do there and what we should be doing here. And we have seen so many expansions already of the kind of reach of this Supreme Court and the power should be doing here. And we have seen so many expansions already of the kind of reach of this Supreme Court and the power of the Supreme Court. And they're just like drunk on it as far as I can tell. And I think they are going to further expand it here. And I don't think until that exchange, I quite appreciated how massive an expansion of judicial power.

We've talked about it, of course, but it's going to be seismic if they do the maximalist version of this opinion. All right, so Chevron, it's been great. It's been great having clean air, clean water, safe food and workplaces where you're not going to be hit by a meat hook as you walk across the factory floor but you know liberty anyway we also wanted to talk about the argument in de villiers versus texas or was it de villiers i think he just said de villiers um i don't know i want to say it in a french way de villiers versus texas anyway texas texas so this is the case about whether the federal constitution gives you the authority to sue a state to demand just compensation forified that right with SB8 would have a big problem with a system that allowed states to vitiate people's ability to sue to enforce the takings clause because they understand what's important, and that is the takings clause, not liberty or bodily autonomy.

Anyway, surprise, Leah. Well, it's a different kind of liberty. This is like economic liberty, so better. Better than bodily autonomy. Fair enough. Anyway, not surprisingly, I think Leah was right. That's exactly what's happening. And just to rehash the facts here, the plaintiffs, property owners argue that Texas intentionally

flooded their lands and filed a suit in state court asserting a right to compensation under both state law and the federal constitution. And this detail is actually important because the Fifth Circuit said the federal constitution doesn't give you, the plaintiffs, the ability to sue a state directly. And it seems like there is a majority of justices who will reverse that decision. And it seems they are going to do so based on the hypothetical fear that it's not this case, that some state might try to structure their law in a way that would, in the future, prevent plaintiffs from getting compensation for property that the state has taken. But the point I am trying to underscore is that is not this case. Because under Texas law, Texas law provides a cause of action to get compensation

from the state under state law. So the plaintiffs had a remedy in court. And that is notably different from the SBA case where Texas purposefully tried to prevent anyone from suing to stop an ongoing constitutional violation. But now the justices are so worried about what some hypothetical state might do in the future regarding property takings that they seem poised to say that you can sue a state under the federal constitution, even if the state allows you to get compensation under state law. So ladies and gentlemen, this is what we call equal justice under the law, but for property owners, not women. And again, maybe this is the new federalism. Yeah. So we wanted to highlight two clips evincing this concern among the justices. First, let's hear from Amy Coney Barrett.

You're really saying that the state could shut down and give no administrative form, no legislative form, no judicial form. And because the Fifth Amendment doesn't create an implied cause of action, then the property owner would have to say, Congress, can you please use your Section 5 power? Where was this energy in SB8, Lady Safehaven? In a box, not on display, not at the argument. I left it at a fire station. And then let's play this clip from the author of the SB8 opinion himself, one Neil Gorsuch.

Two questions. First, the rogue state example. Why shouldn't we worry about that? Why shouldn't we worry about the incentive structure we create that would allow states to withdraw compensation schemes, and maybe the federal government too, to exploit this loophole? Maybe if you take away Jason Kelsey's pain, God, you can also give a little bit of it to Neil Gorsuch. We wanted to highlight one clip about the court's method of interpretation, constitutional interpretation from Justice Kagan here. Well, so our first line argument is, you know, the way the United States did it for 100 years is correct.

But if the court disagrees with that, if the court says, you know what, actually... I kind of agree with that. Your best argument is like what happened between the time of the Constitution and, you know, someplace in the late 19th century. But suppose that I'm not such an originalist and I don't really care about that. Sure. I heard this and I wondered, could this generate a similar writing like the one she had in West Virginia versus EPA, where she lamented having previously said that, quote, we're all textualists now. But this time along the lines of we're not all originalists now because these clowns can't do history. And it turns out originalism was a way of returning us to the Dark Ages.

Because remember this moment from Justice Kagan's confirmation hearing. Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists. We should also highlight this opening from the Texas Solicitor General. Mr. Chief Justice, and may it please the court, the court will be hard pressed to find any government more committed to property than Texas. Seems like he's kind of saying, we're not one of those property-hating communist Democrat blue states. We're Texas, damn it. We love property. And I can't help but wonder whether, while Texas may be very committed to property,

is it similarly committed to, I don't know, life, women's lives, not dying in parking lots, given that it is actually jeopardizing women's lives every day? Just a question, things I'm noodling on. And also jeopardizing migrants' lives, you know, including by allegedly interfering with the Border Patrol's ability to access the border crossing. You know, reports from outlets like the New York Times suggest that Texas's interference with federal immigration officials may have contributed to the drowning and death of migrants, including two children in a river at the border. At least that's what the federal government is suggesting. And Representative Henry Qualar said that, you know, Texas bears responsibility for the death and alleged that Texas had blocked, you know, Border Patrol from rescuing the migrants.

Pro-life. All right. So with the time we have remaining, let's move on to some court culture. And since this episode is largely about one of the big cases that's part of the court's attacks on the administrative state, we wanted to cover another lawsuit that's in its early stages. It's just been filed, but along similar lines. And that is the SpaceX lawsuit challenging the composition and really the existence of the National Labor Relations Board. The NLRB is looking into allegations that SpaceX illegally fired employees for publicly criticizing Elon Musk. A trial has been scheduled on the NLRB's complaint, and it's been scheduled for March.

SpaceX filed a lawsuit arguing that the configuration of the NLRB is unconstitutional. And it specifically, it argues that the NLRB judges and board members must be removable at will by the president. And it also argues that the proceedings violate the right to a jury trial under the Seventh Amendment because they happen within an agency, very jargony. And it also argues that the proceedings violate the right to a jury trial under the Seventh Amendment because they happen within an agency, very jargonsy. And it also argues that the NLRB, quote, transgresses the separation of powers and violates SpaceX's due process rights, end quote, by exercising prosecutorial, legislative, and adjudicatory authority within the same proceeding. Hmm. the same proceeding. So as Melissa just suggested, these arguments probably sound familiar, as some of them are currently before the Supreme Court in the Darcusy case. Other arguments seem to take larger aim at the entire existence of agencies, like the idea that agencies cannot

exercise different kinds of power. But this SpaceX case was filed in district court in Texas, which means it will go to the Fifth Circuit. So this is one we will be keeping an eye on. I think there's likely to be a switch in time that saves Elon Musk. We should also note that after we recorded our last episode in which Kate praised the 11th Circuit for its decision acknowledging different problems with Governor Ron DeSantis's firing of an elected progressive prosecutor. Before we suggest we may have been a little too enthusiastic about the 11th Circuit, let me actually offer a small errata, which is that I said that was a decision allowing the matter to go forward. But there had actually already been a bench trial in which the trial court found that DeSantis did retaliate against the prosecutor in part for engaging in protected

speech, but then found the prosecutor wasn't entitled to relief because there have been other reasons for the removal. Anyway, the 11th Circuit reversed and sent back, so the trial court could at this point maybe even order reinstatement. So thank you to our eagle-eyed listener who wrote in correcting me on that. That was not the errata to which I was referring, Kate. Yeah, the errata is that on the heels of that sensible decision, which Kate praised, the 11th Circuit issued a bad decision allowing a ban on gender-affirming care to go into effect. Kate, this is what happens

when you try and be nice and say nice things about the 11th Circuit. I'm done. I'm sorry. That was the erotic. I learned my lesson. That was the error. Much more significant. It's not Supreme Court decision season yet,

but it is always time for some bad decisions given what has happened with the federal courts. And the 11th Circuit didn't issue a decision explaining why the ban on gender-affirming care was likely constitutional and could go into effect. They just issued an order staying an injunction against the law, thereby allowing the law to go into effect. Both the 6th Circuit and previously the 11th Circuit had issued opinions providing reasons, that's scare quote reasons, for why these bans could go into effect. And in keeping with our coverage of state courts, we also wanted to note that it is

time for some bad decisions from the state courts, too. We love to highlight when state courts do great stuff, but we would be naive, Kate, if we believe that all state courts are going to do great stuff all of the time or that they are structurally predisposed to do great stuff or that they are a panacea for what is happening at the federal court. So just to disabuse us of any optimism we might have regarding state courts, the Mississippi Supreme Court issued a decision that will deny relief to people who relied on the state system of appointing counsel in state post-conviction proceedings. So specifically, the Mississippi Supreme Court said that someone who was appointed counsel by the state in their state post-conviction proceedings

cannot later file another post-conviction motion saying that their state-appointed post-conviction attorney was ineffective. Post-conviction proceedings just mean proceedings that happen after your trial and appeal. They're used for really important claims that sometimes need to be developed after trial or happen to be developed after trial, like claims that your trial lawyer was ineffective or that the prosecution didn't disclose evidence that you're innocent or whatnot. And what this decision says is if the state appointed you an ineffective lawyer who didn't develop any of those claims in your post-conviction proceedings, the state courts will not do anything about it. And this follows, of course, on the U.S. Supreme Court's decision in Shin v. Ramirez, where the Supreme Court had said that federal courts would

not do anything about it either. So some state courts are doing great things, but relying on that system results in this patchwork of rights. We also had a development related to a pending case that we wanted to flag. So Judge Matthew Kaczmierk in Amarillo, Texas, granted a group of states motion to intervene in the case challenging the availability of medication abortion. And this is significant because it decreases the odds that whatever the Supreme Court might say in the pending medication abortion case will resolve these issues once and forever. That case is likely to be argued this spring, although it hasn't yet been scheduled. But whatever happens in that case, the case was not going to resolve the ticking time bomb that is the Comstock Act question, because the court decided not to grant the cross petition from the plaintiffs that presented the question of the Comstock Act. And that, of course, is the 1873 statute that prohibits

transmitting through the mails immoral or indecent materials or objects, and which Judge Kuzmierik had construed to basically cover the interstate transmission through the mails of Mephepristone, the abortion drug. The plaintiffs had asked the Supreme Court to review the Comstock Act issue, but the Supreme Court declined to take that up. So that is not at issue in the case that will be argued this spring. But the fact that there's now been this intervention granted keeps the issue potentially alive for further development and potentially future Supreme Court review. So that is a really alarming, although not unexpected, development. One other piece of news, Judge Mizell, who is the Trump nominee in the district court in Florida, who actually struck down the CDC's masking requirement on mass transit. If you remember

this moment when flyers midair were informed that all of a sudden this mass requirement was no longer in effect. Anyway, she's on to the next. And she has struck down the federal law, barring guns in post offices. So what could go wrong? Is she too young to know what it means to go postal? Because I really mean, I'm genuinely sort of like, right? I mean, we grew up hearing about stuff like that, right? Yeah, yeah, yeah. There have definitely been mass casualty events in post offices in particular. And so I think those of us who are old enough to remember those are correctly alarmed by a ruling like this. One other note, which is after we discussed how the Supreme Court had edited the audio of the oral argument in Moore v. United States, a listener pointed us to some unedited audio preceding an oral argument in the 1980 case of Fedorenko versus United States. And we're just going to play that one here.

It's a little bit hard to make out, but what you can hear basically confirms that the Supreme Court is a consistent, nauseous cesspool of invidious discrimination. I am pretty sure. Chief Justice of the United States. Ladies and gentlemen, the aristocrats. Just a quick note about the plan for the next few episodes. The Supreme Court doesn't hear cases for a few weeks between the January and February sitting, but they added the disqualification case. So we are going to have some episodes that go deep on some particular periods in the Supreme Court's history or issues related to the Supreme Court, but also, you know, obviously analyze the disqualification argument along with that. So that is what is going to be coming up over the next few weeks. So folks, there's a lot to keep track of in a high stakes

election year. There are voting deadlines, volunteer shifts, emergency therapy that you may need. And maybe also you still have to do your job or whatever. So that's why Cricket and Vote Save America created a comprehensive 2024 planner. It's filled with important dates, motivation, and some fun extras to keep you focused, sane, and organized. And for the record, there were some thoughts about including a few Xanax, but as lawyers, we understand that that's a hard no. See the Comstock Act, or actually the new and resuscitated Comstock Act. But in any event, you can start your election year off right by heading over to crooked.com forward slash store to get your planner right now.

Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Thank you. in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please do rate and review us. It really does help.