A Step Back From the “Culture War”

Since 2022, the Supreme Court has issued monumental decisions overturning the right to abortion guaranteed in Roe v. Wade and Planned Parenthood v. Casey, expanding the Second Amendment right to carry concealed firearms, and invalidating the use of racial classifications in college admissions.

As expected, these decisions galvanized the conservative legal movement. Soon after they came down, the federal courts heard challenges to the nationwide legality of the most widely used abortion pill in the country (Mifepristone), to a federal law prohibiting people with domestic violence restraining orders from carrying firearms, and to a race-conscious admissions policy at Thomas Jefferson High School, a prestigious magnet high school in Virginia (this latter case actually began before the Supreme Court’s 2023 affirmative action decision regarding Harvard and the University of North Carolina). Each of these challenges made their way to the Supreme Court last year.

To the surprise, perhaps, of those who see the Supreme Court as a leading foot soldier on the conservative side of the culture war, these challenges were decisively dismissed by the court.

The abortion pill case, Food and Drug Administration v. The Alliance for Hippocratic Medicine, resulted in a unanimous opinion (decided on June 13 this year) stating that a group of “concerned doctors” had no standing to seek a judicial rollback of any of the Food and Drug Administration’s authorizations of Mifepristone because the doctors were obviously not directly injured by the mere existence of the drug — which, in any event, they never prescribed and no one forced them to prescribe.

The challenge to 18 U.S.C. § 922(g)(8), which requires the disarmament of individuals with domestic violence restraining orders, was defeated by an 8-1 margin on June 21. Finally, the court announced back on February 23 that it would not even agree to hear the challenge to the race-conscious admissions policy at the high school in Virginia, leaving in place a Fourth Circuit Court of Appeals ruling upholding the policy.

Another Step Into the “War on the Administrative State”

While the court backed away from these culture war issues this term, it stepped further into what has been called the conservative war on the administrative state. This “war,” in short, involves an effort to have the courts limit the powers of federal government agencies, with potentially grave consequences for the future of environmental and economic regulations.

Since at least the 1980s, conservative commentators, legal scholars, and judges have argued that much of the administrative state violates the Constitution’s separation of powers and basic principles of democracy because it involves unelected executive branch officials wielding quasi-legislative authority. Funders of this campaign — chief among them the petrochemicals oligarch Charles Koch — want to strip away, for good, the very minimal constraints that government has placed on their power.

The administrative state decision that probably received the most media attention this term was a consolidated opinion on two cases — Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo — which overturned something known as “Chevron deference.” Chevron deference comes from what, at the time, was a relatively uncontroversial (and 9-0) 1984 case called Chevron USA v. Natural Resources Defense Council. Chevron held that, when a statute is ambiguous, courts should defer to a federal agency’s interpretation of its own authority under that statute.

Over time, many (but not all) conservatives have criticized Chevron deference for making federal agencies laws unto themselves, for perversely encouraging Congress to pass ambiguous statutes, and for stripping the courts of their proper role in interpreting the laws. Liberals, on the other hand, have defended Chevron deference as a necessary benefit of the doubt given to experts working in federal agencies, whose work would be very difficult indeed if they were constantly undermined by judges who have no real idea how, for example, to regulate the stock market or to protect endangered species. Unsurprisingly, in Raimondo, the court’s six conservative and three liberal justices took these divergent positions.

In her dissent, Justice Elena Kagan argued that the death of Chevron deference is tantamount to the death of the administrative state. Liberal media commentators have adopted a similarly grave tone. The reality is that, on its own, Raimondo is not quite so disruptive. For one thing, it explicitly refused to overrule any other cases that relied on Chevron. Moreover, Chevron has, for some time now, been approaching the status of what David French and Sarah Isgur (paraphrasing Antonin Scalia) call “zombie precedent”: technically still good law, but generally avoided and almost never invoked by the Supreme Court — neither living nor dead.

Yet if Raimondo is viewed alongside other cases decided this term, Justice Kagan’s apparent alarmism makes more sense. In Corner Post, Inc. v. Board of Governors of the Federal Reserve System, the court (in another 6-3 divide) held that the six-year statute of limitations for suing federal agencies “begins to run only when the plaintiff has a complete and present cause of action” — not when a regulation is issued. As a result, newly created businesses can potentially bring lawsuits against regulations first issued decades ago.

More significantly, in Securities and Exchange Commission v. Jarkesy (again, 6-3), the court found “that the Securities and Exchange Commission (SEC)’s routine practice of imposing fines in its administrative proceedings, used to penalize securities fraud, violates the Seventh Amendment ‘right of trial by jury’ in all ‘suits at common law.’” This means that not only the SEC — but numerous other federal agencies that impose fines — could be deprived of an enforcement mechanism and an important source of their own revenue.

These decisions come after two previous terms in which the court also curtailed the administrative state by invalidating agency actions with “vast economic and social significance,” including the Biden administration’s student loan forgiveness plan and the Environmental Protection Agency’s Clean Power Plan. The court argued that such “major questions” require specific authorizations from Congress. In theory, this sounds logical; in practice, it inhibits Congress’s ability to delegate and ensures that “major questions” get thrown back to Congress, where they will usually die.

What Next?

The court is not out of the culture war. The lower courts have been flooded with challenges to race-conscious admissions policies in the aftermath of the court’s 2023 affirmative action decision; the Supreme Court cannot avoid these cases forever. The court’s decisive repudiation of Roe and Casey in the 2022 Dobbs v. Jackson Women’s Health Organization decision should keep it away from any future questions about a constitutional right to abortion, but it already had to rather awkwardly dodge a case from Idaho this term, which argued that near-total state abortion bans violate the 1986 Emergency Medical Treatment and Labor Act. The court will definitely hear more gun control cases: it has already agreed to hear one about “ghost guns,” and sooner or later it will hear one about assault weapons bans. On a different culture war front, the court has also agreed to hear a case next term related to state bans on gender affirming care for minors.

Yet what does seem to be clear is that the court is not planning — as many commentators and the liberal justices on the court predicted after the Dobbs decision — a complete return to the cultural norms of the 1950s by overturning its precedents protecting gay marriage, consensual sex for purposes other than procreation, contraception, or even interracial marriage. No such cases are being heard in the lower courts, and no one in the conservative legal movement seems to be interested in bringing them. The administrative state cases, on the other hand, emerge from long-standing plans in the conservative legal movement and keep expanding, term after term, in their scope and reach.

To be sure, the court’s decisions in these cases can be defended on various grounds. The conservatives who criticize the administrative state could even find some common ground with leftists who are skeptical of detached technocracy or of an overly powerful executive branch. But the issue is not about the virtues or vices of the administrative state. It is about the risks of an even less democratic institution — an unelected clique of Yale and Harvard graduates — making these judgements for us.

For the Left, these risks are serious, but not quite as disastrous as the liberal justices on the Supreme Court would have us believe. The war on the administrative state will definitely constrain what can be achieved through executive action, which has often been necessary to cut through congressional gridlock and deliver important victories such as the Deferred Action for Childhood Arrivals (DACA) plan, the nationwide COVID-19 eviction moratorium, and stricter enforcement of antitrust laws. It will also essentially give the conservative legal movement — which controls not only the Supreme Court but also, thanks Donald Trump and Mitch McConnell, the nation’s district and appeals courts — license to chisel away at regulations or agencies that it doesn’t like.

Nevertheless, the major national policy proposals coming from the Left today could not — even at the best of times — be achieved through executive action or agency regulations. Because of Congress’s dominant role in the constitutional structure, especially its control over the federal purse strings, things like universal health care, expanded labor rights, serious efforts to address climate change, and wealth redistribution would all require legislation. And the constitutionality of such legislation, if it is ever passed, will not be directly imperiled by the court’s war on the administrative state.

For now, then, the best strategy is to call the Supreme Court’s bluff: put less faith in and give less power to the administrative state, focusing instead on the struggle for legislation. If the court then mounts a war on progressive legislation, the time may come to declare war on the court, as the Left did in the 1930s.