In a reversal, Supreme Court gives judges, not agency experts, final say on regulation
REBECCA: Hi, this is Rebecca (ph) from London, England. Everyone's asleep, so I get to have this ice cream all to myself.
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REBECCA: This episode was recorded at...
SARAH MCCAMMON: 12:43 p.m. Eastern time on Tuesday, July 2, 2024.
REBECCA: Things may have changed by the time you hear this.
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REBECCA: Enjoy the show.
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MCCAMMON = HOST: So relatable for anybody who has kids, right?
DOMENICO MONTANARO, BYLINE: Yeah, better not ding the bowl too loudly before they get up and they're like, Mom.
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MCCAMMON = HOST: Just hide anything you don't want to share in the vegetable drawer, although that doesn't work with...
NINA TOTENBERG, BYLINE: ...Ice cream. No.
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MCCAMMON = HOST: Hey, there. It's the NPR POLITICS PODCAST. I'm Sarah McCammon. I cover the presidential campaign.
MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.
TOTENBERG: I'm Nina Totenberg. I cover the Supreme Court.
MCCAMMON = HOST: And speaking of the Supreme Court, the Court's term is over. All of the decisions are out, and it was one for the history books. Nina, I want to start with you with your big-picture thoughts on what this term was like and how it might compare to the few others you've covered.
TOTENBERG: I actually don't remember a Court this thunderously newsmaking. There were - by the time we reached the last 10 days of court, there were 10 major decisions outstanding. And even the year when the court reversed Roe v. Wade and made regulation of guns all but impossible, even that term was, in some senses, less important than this term, where the court made it very hard to regulate everything from industries to, you know, work sites and, at the same time, broadened presidential powers enormously in a way that no president had ever tried to broaden them before.
MCCAMMON = HOST: And at the same time, in the midst of these really crucial cases, there has been a slew of controversies around ethics involving the justices' spouses and their politics, as well as unreported gifts to justices. The court is under a lot of scrutiny right now, but obviously very powerful. How does that factor into the way that these decisions are being received?
TOTENBERG: Well, I know how they're being received, which is by people who don't like the outcome - not well. But the problem for the court is that it really doesn't want to be viewed as political, and the chief justice has tried very hard to maintain that line. If, at the same time, you have big Republican donors giving lots of gifts to people that were undisclosed, and, at the same time, neither of the justices - neither Justice Thomas, whose wife was involved in trying to actually submit alternate elector slates - Justice Thomas didn't recuse himself, and Justice Alito didn't recuse himself. Frankly, I think the argument for Thomas recusing himself was much stronger than Alito's, but that's neither here nor there. Suddenly, the court is a political issue. I can't tell you the number of people yesterday I talked to who said Biden needs to run on the court.
MCCAMMON = HOST: Isn't it harder to do with these cases? I mean, they're so important, as you say, but they're not these sort of easily digestible issues, for the most part, like abortion and guns, which people understand immediately.
TOTENBERG: I think that's true, but they've got abortion and guns, too, so (laughter)...
MCCAMMON = HOST: True. True. It's all there.
MONTANARO: Well, I mean, obviously, though, Democrats are really rethinking sort of how to run and how to make the Supreme Court an actual issue. We heard President Biden talking yesterday, and I thought his remarks were kind of interesting.
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PRESIDENT JOE BIDEN: This nation was founded on the principle that there are no kings in America. Each of us is equal before the law. No one is above the law, not even the President of the United States. With today's Supreme Court decision on presidential immunity, that fundamentally changed.
MCCAMMON = HOST: Fundamentally changed - I mean, what do you make of that, Domenico?
MONTANARO: Yeah. And this is not the first time that Biden or a Democratic president has singled out the Supreme Court. But it really - the Supreme Court has never really been a voting issue for Democrats the way it's been a voting issue for Republicans. I mean, for 50, 60 years - I mean, we're on the - at the 60th anniversary of the Civil Rights Act being passed. And, you know, it wasn't just Roe and abortion. Cultural issues have been a reason why a lot of Republicans and conservative activists have, for a long time, really started to organize around the kinds of justices you want to have on the Supreme Court, you know, principally to try to overturn Roe because they didn't like it. And now you could argue that all of that work, all of that political activism, has paid off, and they were ready for the moment when it came.
MCCAMMON = HOST: But what's the chicken, and what's the egg here? I mean, was activism around abortion the reason that these conservative justices were in place to make these decisions, or was that sort of the organizing issue all along?
TOTENBERG: For years, I would write pieces saying, you know, maybe this year the court will be an issue in the presidential election. It never was until 2016. And the polling data afterward showed that the antiabortion groups really turned out for Trump. It made the difference in some key states. And this year, I think there is a chance that the court as an issue - overturning Roe, giving the president quite unlimited and sweeping powers - those could be issues in which the Democrats are able to drive the left to say, OK, I don't particularly love Biden, but I'm scared of the Supreme Court. I'm going to go vote.
MONTANARO: It's all part of it, right? I think that when you think about what Biden is running on, what the Democrats are running on - January 6, abortion rights - those happen to be two of the biggest, most controversial things that the Supreme Court has done. And this is frankly the first presidential election since the Dobbs decision, which overturned Roe - super unpopular. And, you know, that's a big thing that they're organizing around, and it happens to be a couple of the few areas where Biden is trusted more than Trump on all of the things that they say will impact their vote the most. Whether it's the economy, foreign policy, etc., Trump is usually trusted more - but not on democracy, not on abortion rights.
MCCAMMON = HOST: Yeah, and to Nina's point, while abortion motivates a lot of voters who are key constituencies for Democrats, it is not the issue that's at the top of people's list.
MONTANARO: Yeah. But, again, you need everybody to show up as part of your coalition. And, you know, Biden has been struggling, obviously, in the polls with a lot of different groups. And I think that this is a really key thing - this decision and that speech that he made yesterday - in trying to frame the election and frame the stakes of what's at stake here to say, hey, you know, maybe you're not totally thrilled with me, Joe Biden, but look at what the alternative is and look at how the Supreme Court may have just empowered somebody who is saying that he would seek retribution against his political enemies. And now the Supreme Court is essentially saying that he has all of the power to do that, even if it's through otherwise illegal means.
TOTENBERG: It is also a good tool to get at the left because all you have to say is, look, a couple of these justices are in their mid or late 70s, and you could have two vacancies or three vacancies. You could have a court that's sort of all like Clarence Thomas and Neil Gorsuch and Sam Alito, the hardest right members of the Court. They could really have the upper hand.
MONTANARO: And Nina, you know better than anybody, but with Thomas and Alito - you know, Thomas being 76, Alito being 74 years old - if Donald Trump were to win again and were to get back in the White House and was able to appoint replacements for even just them, not changing the conservative ideological picture at the court - the majority at the court right now - if he appointed somebody in their 50s to replace them, that would definitely set the left back 20 years or so.
TOTENBERG: Right. But I do think it's a good motivator for the left, which is not very happy. The young left, particularly, is not very happy with this president, but this could be a motivator for them.
MCCAMMON = HOST: We're going to take a quick break. And when we get back, we'll talk about some of the cases we didn't get a chance to talk about on the podcast.
And we're back. Nina, I want to focus on a case that is going to reshape federal agencies' ability to do - one of the big things they do, which is regulate just about anything. It has to do with something that is called the Chevron deference. What is that?
TOTENBERG: So 40 years ago, the Supreme Court was facing a problem. It kept getting asked for little - you know, to decide all kinds of regulations, whether they were appropriate or not, based on the science, based on data that they really didn't have. And they were tired of it. And they came up with this - the case was called Chevron, and the doctrine is called Chevron deference. And what it said was if an agency sees a statute that it has to interpret, and the statute is ambiguous, the agency does its best, relying on all its expertise, and we should defer to the agency's findings of what is the appropriate response under this law.
MCCAMMON = HOST: 'Cause they have the experts.
TOTENBERG: Yes, 'cause they have the experts, and we don't. And lower court judges certainly don't. It went on for 40 years. And I have to say the conservatives signed onto this, too. In fact, Justice Scalia, who would - who at the time was a federal judge, but - and would go to the Supreme Court, I think, two years later - he embraced that idea. He'd been on the D.C. Circuit, which handles a huge number of administrative law cases, and he felt at the time that judges should not be sort of monitoring every jot and tittle of what the agencies do - that it was an impossible thing for judges to do, that they - the agencies had the expertise.
He came, I think, to partially at least regret that view, but that was his view back then. Well, over the years, I would say that a lot of people who hate regulatory agencies and think that they interfere with their ability to make money and to be efficient and all kinds of things like that - they got what they wanted. And, interestingly, at the oral argument, Justice Kavanaugh said to the government's advocate - he said, isn't it our job to make sure that the government doesn't act like a king? This was not the presidential powers case.
MCCAMMON = HOST: Right.
TOTENBERG: This was deregulation.
MCCAMMON = HOST: Right.
TOTENBERG: And that was his view of the regulatory, administrative state - that it was allowing the president, through his agencies, to act like a king. And the court said, sorry, we're getting rid of Chevron deference. Now, we don't really know what's going to replace it. Maybe nothing. I mean, the court has been extraordinary in the way it has dealt with the EPA, for example, in water issues and air quality issues. It has not even waited for lower courts to act before ruling on some of these cases, which is really pretty amazing.
MONTANARO: It's so interesting for a Supreme Court that has, you know, moved to give more presidential power. This, in a lot of ways, hobbles the presidency in trying to be able to figure out regulations - a regulatory scheme throughout the country - I guess unless you're a conservative and you want to get rid of a lot of regulations.
TOTENBERG: It's not that easy always to get rid of established regulations. And there's one other thing the court did. I mean, it's conceivable that, if Trump's elected, he'll be very frustrated for a while because it takes time to get rid of regulations.
And one other thing - there was a little-noticed opinion on the court's last day, when they did all this other very big stuff about the president, in which it said that, from here on out, the statute of limitations for challenging a final rule of an agency was six years. But the Court said, if you are affected later than that and can show that you couldn't have challenged it earlier, then you have an unlimited amount of time to challenge a regulation. So that arguably would mean that long-established rules could be challenged by groups that disagreed back when and now will challenge these things again. You can always find a plaintiff. You know, that's not hard. You can always find somebody, and you say, well, you know, we failed before, but now we've got the court we like. We can try again, and we've got a new plaintiff.
MCCAMMON = HOST: You mentioned, Nina, that this case was sort of little-noticed. What else do you think has been undercovered this term?
TOTENBERG: I think the whole idea of - you know, conservatives, in modern times anyway, have fought very hard against the so-called administrative state. And they won a series of victories - abolishing Chevron deference, making it impossible for the Securities and Exchange Commission to enforce civil penalties against bad actors without going to court - they can't do it with administrative law judges - and the case that extends the statute of limitations for challenging regulations. So those three posts of a three-legged stool will really change the landscape of regulatory law for probably the rest of my life and maybe even yours, Sarah, and you're a lot younger (laughter).
MCCAMMON = HOST: We're going to leave it there for today. I'm Sarah McCammon. I cover the presidential campaign.
MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.
TOTENBERG: And I'm Nina Totenberg, and I cover the Supreme Court.
MCCAMMON = HOST: Thank you for listening to the NPR POLITICS PODCAST.
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