This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
On Friday morning, the Supreme Court issued an explosive decision hobbling the president’s ability to enforce regulations—just 12 hours after President Joe Biden’s disastrous performance at the CNN debate against Donald Trump. The conservative supermajority’s ruling in Loper Bright Enterprises v. Raimondo overturned 40 years of precedent based on “Chevron deference”—shifting an immense amount of power away from Congress and the executive branch toward the judiciary. The ruling gives unelected judges free-floating veto power over the enforcement of virtually all laws and puts a heavy thumb on the scale of deregulation, hobbling Democratic presidents’ ability to govern.
On Saturday’s episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discuss the connection between the debate and the court’s decisions with Stanford Law professor Pam Karlan, who served in the Biden administration as deputy assistant attorney general in the Civil Rights Division of the U.S. Department of Justice. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: I have this lingering question about how the Trump-Biden debate, and presidential debates more generally, mislead and misdirect the conversation about how government actually works. Onstage, it looks like these two guys will personally be setting policy on veterans affairs and climate and immigration and everything else. That’s how the questions are framed and answered. But that completely obscures the long march toward deregulation, and the attacks on voting rights, and the threats to the separation of powers—all coming from an aggressive, conservative judiciary. Look at the enormity of what’s going on at the Supreme Court, from Jarkesy to bump stocks to Loper Bright and beyond: Much more so than any presidential debate, that seems to me to be the story of what’s happening to our democracy. Can you reframe this for people who are distracted by the pomp and circumstance of a CNN debate?
Mark Joseph Stern: I think it’s illuminating to have had Loper Bright come down the morning after that debate. Joe Biden did not perform well Thursday night, and the reaction on the left was, in part, fear about whether this guy could still serve as the chief executive of the United States. I understand those concerns. But I think this popular vision of the president as basically running the country is so far removed from how government actually works.
At a certain point, it is actively misleading to put too much stock in, say, the performance of a candidate on a debate stage. The government is vast. It is run by a bunch of agencies, most of which you probably haven’t heard of, that are staffed with experts who have a deep knowledge and experience in a particular subject matter, alongside lawyers who want to make government work for the people. And they’re operating under political appointees who are accountable to the president, who’s accountable to the people. We rarely talk about these agencies, yet they’re the ones who are interpreting and executing the law, day in and day out. They’re approving or rejecting new drugs. They’re limiting pollution from some dirty factory in West Virginia that’s creating a cancer cluster in a majority-Black community. They’re the ones who are making sure we’re given the full scope of protections that Congress aimed to give us when enacting broadly worded laws.
That’s how government works, and it’s anathema to the Republican Party and Donald Trump. One of Trump’s key goals was dismantlement of the administrative state. Steve Bannon said it himself. And that’s a fundamental part of Project 2025. They want to stop government from working, because they believe when government functions properly, it’s bad for billionaires. It’s bad for polluters. It’s bad for industry that wants to dump pollution into our waters, or sell drugs that aren’t safe, or make a ton of money and shelter it from taxation.
Right now, much of the country is still talking about Biden stuttering on the debate stage instead of how each of these men would run and staff the sprawling government that they would ostensibly run. If we had a healthier conversation here, we’d be talking more about Loper Bright today than about the debate. Because the Supreme Court has just awarded itself sweeping authority to overrule those agencies and experts and appointees and shift all that power to unelected judges, away from the people. And Trump wants to appoint more power-hungry judges who operate like this Supreme Court, and staff the executive branch with industry-allied appointees who will try to dismantle the very agencies they run. But because most Americans, I fear, still fundamentally misunderstand how the wheels of government truly turn, we’re obsessing about Biden’s sore throat, not talking about one of the biggest power grabs that the judiciary has ever undertaken.
Pam Karlan: Implicit in what Mark is saying, I think, that whichever candidate wins the election, the Supreme Court is going to be there to dismantle the regulatory state. That’s the real story here underneath everything else. Even if a Democratic president prevails—even if, somehow, a vigorous, 39-year-old Democratic president were elected—the Supreme Court would still be there to kneecap their attempts to deal with climate change, securities fraud, pension fraud, medical emergencies, and more. The Supreme Court can dismantle all of that without regard to who’s in the White House. That’s what the big story of this last week at the Supreme Court has been.
You know, it used to be that Justice Scalia was the major proponent of Chevron deference. And what you’re seeing now is because of a change in politics—a view that maybe Republicans won’t always hold the executive branch, but they’re going to hold the judiciary for a good, long time. They don’t want to defer to the executive branch anymore because the executive branch may have a Democratic president. But the courts, or at least the Supreme Court, is going to be a Republican court for quite a while. And through the courts, they can dismantle a lot of stuff that they wouldn’t be able to dismantle through the political process.