Kagan Warns Supreme Court Just Gave Itself New 'Exclusive Power'

The Guardian or Authority of Law, created by sculptor James Earle Fraser, rests on the side of the U.S. Supreme Court on September 28, 2020 in Washington, DC. SCOTUS Justice Elena Kagan wrote a dissent in a case on Friday, saying the Court's own precedent in "Chevron" has been upended.

U.S. Supreme Court Justice Elena Kagan said the overturning of a 40-year decision "will cause a massive shock to the legal system."

In a 6-3 decision on Friday, the court overruled its 1984 decision in Chevron v. Natural Resources Defense Council that led to the so-called Chevron doctrine, which resulted in courts deferring to agencies' interpretations of statutes when disputes were marred by ambiguity. Chief Justice John Roberts, in his 35-page opinion, called the doctrine "fundamentally misguided."

Supreme Court reporter Nina Totenberg of NPR said the doctrine was decided as a method for agencies to "fill in the gaps" of congressionally approved regulatory mandates. The decision originally was not viewed as controversial but in the decades since has been "regarded as a particularly consequential one," cited more than 18,000 times by federal courts, SCOTUS Blog said.

"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," Kagan wrote in her dissent, supported by Justices Ketanji Brown Jackson and Sonia Sotomayor. "As if it did not have enough on its plate, the majority turns itself into the country's administrative czar.

"It defends that move as one [suddenly] required by the [nearly 80-year-old] Administrative Procedure Act. But the Act makes no such demand. Today's decision is not one Congress directed. It is entirely the majority's choice. And the majority cannot destroy one doctrine of judicial humility without making a laughing-stock of a second."

Kagan wondered how the ruling will impact the nation years and decades from now, saying agency interpretations afforded under Chevron "may have benefited regulated entities or may have protected members of the broader public."

"Either way, private parties have ordered their affairs—their business and financial decisions, their health-care decisions, their educational decisions—around agency actions that are suddenly now subject to challenge," she wrote.

She added that the decision overturns the court's own precedent and gives all courts the "power" to make policy decisions, including those involving scientific and technical judgments in addition to weighing competing goods and values.

"It puts courts at the apex of the administrative process as to every conceivable subject—because there are always gaps and ambiguities in regulatory statutes, and often of great import," she wrote. "What actions can be taken to address climate change or other environmental challenges? What will the Nation's health-care system look like in the coming decades? Or the financial or transportation systems? What rules are going to constrain the development of A.I.?

"In every sphere of current or future federal regulation, expect courts from now on to play a commanding role."

Roberts wrote in his opinion: "Chevron's presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do."

The court addressed the Chevron question in Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo.

The fishermen in Loper Bright faced what they referred to as an unlawful requirement imposed on them by an executive branch agency that could force them to surrender 20 percent of their earnings to pay at-sea monitors.

"We are grateful the Court has overruled Chevron," Bill Bright, a Cape May-based herring fishermen and eponymous plaintiff in Loper Bright, said in a statement shared with Newsweek.

"Today's restoration of the separation of powers is a victory for small, family-run businesses like ours, whether they're involved in fishing, farming, or retail. Congress never authorized industry-funded monitoring in the herring fishery. And agency efforts to impose such funding hurts our ability to make an honest living. Nothing is more important than protecting the livelihoods of our families and crews."

Former U.S. Solicitor General Paul Clement, who argued before the court on the fishermen's behalf, said in a statement shared with Newsweek that the decision "puts to rest an interpretive methodology that has seriously distorted how the political branches operate for far too long."

"Courts should ask what the law means, not whether it is ambiguous, and in close cases, the tie should go to the citizen, not the government," Clement said. "We are gratified that the Court restored the constitutionally mandated separation of powers."

Newsweek reached out to Clement for further comment.

The decision is not being celebrated by all.

Catholics for Choice, an organization that fights for individual rights, including sexual and reproductive health, told Newsweek that the decision has one goal: "To give the Supreme Court even more power."

"If you didn't already believe—based on Justice [Clarence] Thomas's concurring opinion in Dobbs v. Jackson Women's Health Organization two years ago—that this conservatively-stacked Supreme Court had grand plans to undermine all of our fundamental freedoms, Justice' Kagan's dissent today sounds the alarm that her colleagues plan to do exactly that," Catholics for Choice President Jamie Manson told Newsweek via email. "We should heed her warning of her colleagues' hubris and disregard for the wisdom of the justices that came before them.

"Catholics for Choice monitored these cases because they are all part of a larger and more nefarious agenda—led by Leonard Leo and Christian nationalist forces like the so-called Alliance Defending Freedom—to erode democracy and put power into the hands of right-wing Christian and Catholic justices and judges."

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