The decision in Loper Bright mirrors the court’s decision in the 2022 Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade. In both decisions, the court actively chose to throw out decades-old precedent in service of an outcome fervently sought by conservative and right-wing activists. In Dobbs, it was curtailing abortion access. In Loper Bright, it was reducing the power of government agencies to implement laws.
At issue is the inevitable gap between laws as written and laws as implemented. Congress doesn’t and can’t think of every eventuality when creating new rules, so details are left to the agencies tasked with implementing them. Under the 1984 Chevron vs. Natural Resources Defense Council decision, courts deferred to the judgment of those agencies when the implementation was challenged and congressional intent was unclear. Loper Bright undoes Chevron, explicitly.
“Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities,” Chief Justice John G. Roberts Jr. wrote in Loper Bright’s majority opinion. “Courts do. The Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment.”
In her dissent, Justice Elena Kagan offered examples of what those “ambiguities” often look like in practice. When does an alpha amino acid polymer qualify as a particular protein? How should the “distinct population segments” of certain endangered animal populations be determined? What constitutes “natural quiet” and when has that quiet been “substantially restored”?
Kagan dug into the endangered animal question.
“Deciding when one squirrel population is ‘distinct’ from another (and thus warrants protection) requires knowing about species more than it does consulting a dictionary,” she wrote. “How much variation of what kind — geographic, genetic, morphological, or behavioral — should be required? A court could, if forced to, muddle through that issue and announce a result. But wouldn’t the Fish and Wildlife Service, with all its specialized expertise, do a better job of the task — of saying what, in the context of species protection, the open-ended term ‘distinct’ means?”
Answering such questions “does not mainly demand the interpretive skills courts possess,” she wrote at another point. “Instead, it demands one or more of: subject-matter expertise, long engagement with a regulatory scheme, and policy choice.”
She chastised the majority for assuming that it knew better on such issues.
“A rule of judicial humility gives way to a rule of judicial hubris,” she wrote. She later added another pointed criticism: “In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law.”
“As if it did not have enough on its plate,” Kagan continued, “the majority turns itself into the country’s administrative czar.”
The decision is unquestionably a function of the business-friendliness of the conservative majority. Revoking Chevron means that businesses frustrated by regulations don’t have to appeal to scientists and bureaucrats but can, instead, hire lawyers and talk to judges — terrain where their odds of success are much higher in part because the judges aren’t subject-matter experts.
It is also, of course, a reflection of the right’s long-standing effort to undercut the power of the federal government. But that sits alongside the more politically salient factor, that fundamental rejection of expertise.
There are two acute reasons that the right in particular has embraced an explicitly anti-expert worldview, shifted toward believing that anyone’s opinion is as good as anyone else’s.
The first is that the internet has facilitated an approach to knowledge rooted in what people dig up for themselves. This is not necessarily detrimental, but, in practice, it means that people sift through information less for edification purposes than to seek out what reinforces their existing beliefs. Why should we listen to infectious-disease expert Anthony S. Fauci’s assessment of the coronavirus when this podcast says that horse dewormer does the trick?
The other factor here is Donald Trump. Trump ran as the nongovernment guy, the guy who would uproot the “deep state” that did things like assess how best to implement regulations. He was an outsider, someone untainted by the expertise of having held office or served in government. (This, too, leveraged the right’s hostility to government — which is of course intertwined with hostility to paying taxes.) Then Trump won, and he made hostility to government and to expertise a hallmark of his government. He’s the guy who made Fauci a target in the first place.
In 2022, YouGov asked Americans to whom the government should defer if expert opinions on a complex issue disagreed with majority opinion. A plurality of Democrats chose the experts. Republicans chose the Americans by a 2 to 1 margin.
Given a choice between having a regulation assessed by bureaucrats steeped in knowledge of an issue or having a Trump-appointed judge do so, it seems clear whom those Republicans would pick.
In her dissent, Kagan quoted from the original Chevron ruling, offered back when more than half of Republicans told the American National Election Studies poll that they trusted the government to do the right thing all or most of the time. (In 2020, fewer than a quarter did.)
“Judges are not experts in the field,” that decision noted, “and are not part of either political branch of the Government.”
“Those were the days, when we knew what we are not,” Kagan observed. “When we knew that as between courts and agencies, Congress would usually think agencies the better choice to resolve the ambiguities and fill the gaps in regulatory statutes. Because agencies are ‘experts in the field.’”
Sure, but how hard can it be to figure out what an “alpha amino acid polymer” is? Give a judge a laptop, access to Google and an industry attorney who can walk him through it and we can get all of this sorted out in no time.
