Thoughts from the Trenches: the rule of law in America only works if everyone agrees to play by the same rules. And, right now, that isn't happening. The U.S. Supreme Court struck another major blow to the rule of law today - and, by extension, to all of us who practice law - with six Justices overturning 40 years of settled precedent simply because no one can stop them.
Two years ago, I wrote here (link to article in comments) about the dangers of the Supreme Court taking a sledgehammer to settled precedent without meaningful justification. In that instance, the Court took away a fundamental right for the first time in U.S. history, even as the five Justices who did it recognized repeatedly during their confirmation hearings years earlier that the right - established decades earlier in Roe v Wade - was settled law.
Welp, here we are again. In 1984, the Supreme Court established that courts interpreting a federal law should defer to how an executive agency carries out that law where (1) the law's text is ambiguous and (2) the agency's read of the text is reasonable. This doctrine is often called "Chevron Deference" because Chevron was the plaintiff in the 1984 case.
The logic behind Chevron Deference is simple: judges are generalists. In contrast, executive agencies like the Department of Energy, Department of Education, etc. are filled with subject matter experts. Those experts know more than your average judge, and so their understanding of what a law was intended to do should hold weight where Congress failed to write the law clearly. Executive agencies are also more directly accountable to the people because the country's Chief Executive is elected, while judges are not.
The Supreme Court is supposed to apply a multi-factor legal test for when a precedent should be overturned. The test looks at: the quality of the precedent's reasoning, the workability of the rule it establishes, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.
Chevron Deference has been the law of the land since 1984. And nothing in U.S. law, customs, or social norms has changed such that the Supreme Court could justify overturning it. That did not stop six Justices from overturning Chevron this morning, officially setting aside 40 years of precedent and, in practicality, substituting the opinions of unelected generalist lawyers for agency experts.
Regardless of what your politics may be, we are on a dangerous path right now vis-a-vis the rule of law in America. Speak out while you can.
#SCOTUS #legalnews #Chevron #ruleoflaw #lawyers
