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Perspective: How a Supreme Court decision went from red to blue in less than 2 decades

Between Reagan and Obama, support for ‘Chevron deference’ changed. Now the doctrine is back before a conservative Supreme Court

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Michelle Budge, Deseret News

What makes a Supreme Court case conservative or liberal, red or blue? Sometimes the answer is less obvious than you’d think.

When Chevron U.S.A. v. Natural Resources Defense Council was decided in 1984, the decision looked reddish-purple. Its immediate effect was conservative — the court sided with the Reagan administration and an oil company against an environmental group — but the opinion was unanimous and written by liberal Justice John Paul Stevens.

Fast forward 20 years to the 2000s, when that purplish decision was shading towards crimson. It was no longer a case about an oil company; instead the doctrine of “Chevron deference” has come to mean that when a federal agency interprets a law, courts should adopt the agency’s interpretation as long as it’s reasonable.

The implications were enormous. As I’ve written before, there are so many federal agencies that we’ve lost count, and they’re constantly interpreting acts of Congress. Is carbon dioxide a pollutant under the Clean Air Act, meaning the EPA can regulate everything that emits carbon dioxide? Does the CDC have the authority to prohibit evictions nationwide?

The final answers to questions like these can depend on whether the Supreme Court invents its own interpretation or defers to the agency instead.

So who turned Chevron, the oil-company case, into Chevron, the judicial deference case, the foundation of modern administrative law? The most famous answer is Antonin Scalia, then the intellectual leader of the Supreme Court’s conservative wing.

And who was skeptical? John Paul Stevens, the liberal justice who had written Chevron in the first place, plus other progressives who were concerned Republican presidents would use Chevron to rewrite liberal statutes.

In short, if you’d learned about Chevron in 2008 and never thought about it again, you’d consider it a mostly conservative decision. You’d expect the Supreme Court to consider overturning it only if new appointments had swung the court leftward.

But just this month the Supreme Court announced it will consider overturning Chevron —and it’s the most conservative Supreme Court since the 1930s.

To heighten the irony, the crusader-in-chief against Chevron is Scalia’s Trump-appointed replacement: Justice Neil Gorsuch, whose mother Anne Gorsuch was running the EPA when it made the decision that the original Chevron case deferred to.

Chevron flipped from burgundy to periwinkle in just 15 years. What happened?

The cynic says, “Politics.”

After Chevron, Republicans held the White House for 17 of the next 25 years, but their Supreme Court appointees kept disappointing them, often proving unreliable (Anthony Kennedy and Sandra Day O’Connor) or reliably liberal (John Paul Stevens and David Souter).

So conservatives’ support for Chevron was easy to explain. They wanted Republican presidents to appoint conservative agency chiefs who would give statutes a conservative interpretation — and they didn’t want liberal courts getting in the way.

Then, when second-term Barack Obama with his pen and his phone enacted progressive policies through agencies instead of Congress, conservatives changed their minds (as Temple University’s Craig Green has argued). They buried Chevron next to their Bon Jovi cassettes and told the Supreme Court to get to work.

Does that mean conservative arguments about Chevron (first pro, then contra) were always about political self-interest? And if so, does that mean the legal conservative movement is nothing more than Republican politics in a black robe — a trick to let conservative judges enact conservative policies while pretending to follow the law?

Such judges exist, a few of them, on both sides of the spectrum. That said, conservatives’ thinking about Chevron has always been more conflicted than Scalia and Chevron’s other fans let on. By the 1990s some commentators (here’s one of my teachers, Tom Merrill) were pointing out that Chevron was inconsistent with conservatives’ other legal principles.

Yes, such commentators acknowledged, deference to Chevron served the conservative goal of getting judges out of policymaking — as the Federalist Society motto puts it, “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

Chevron meant that unelected judges would make fewer important decisions and the democratically accountable executive branch would make more.

But ending judicial policymaking wasn’t an end in itself (at least in principle); it was part of conservatives’ belief in the separation of powers. Conservatives didn’t want judges to stop making decisions: they wanted judges to make judicial decisions, the president to make executive decisions and Congress to write the laws.

Seen in that light, Chevron makes less sense. One of the reasons the Supreme Court offered for the decision was delegation: the idea that Congress, by creating an agency and authorizing it to implement a particular statute, had delegated legislative power to the agency and authorized it to fill the statute’s gaps.

Consequently, while some conservatives were building up Chevron, others were attacking the theory of delegation that Chevron rested on. Executive agencies exercising legislative powers? To paraphrase Gorsuch: “James Madison would be rolling in his grave.”

Think again about that Federalist Society motto: “it is emphatically the province and duty of the judiciary to say what the law is.” Gorsuch and others argued that, under Chevron, the judiciary was letting federal agencies say what the law is. They believed Chevron, in the name of protecting the executive from power-hungry judges, had abandoned courts and Congress to the power-hungry executive.

So which is it? Was conservatives’ turn against Chevron a cynical piece of power politics — an opportunistic way to exploit their luck with Supreme Court appointments? Or was it a return to conservatives’ deeper constitutional beliefs, ones that Scalia’s attacks on judicial activism had obscured?

Call it like you see it, I guess; for myself, I figure it’s some of both. But have some charity: we’re all masters of motivated reasoning, and we all change our minds as new events show us the problems with what we thought before.

And if you’re convinced a friend from the other party is out of his mind, on this issue or any other, just wait 15 years. What’s red and what’s blue can change faster than anybody expects.

Alan Hurst is an attorney in Salt Lake City. His opinions are his own and do not represent the views of his firm or his clients.