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The assault by the six right-wing justices on the Chevron doctrine is an assault on everyday people, carried out on behalf of corporations and the Court’s wealthy benefactors.
Last month, the Supreme Court broke with four decades of precedent and overturned Chevron deference, a cornerstone of administrative law that has been cited by federal courts over 18,000 times. The 6-3 ruling, handed down on party lines in the cases Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, eliminated a judicial doctrine that had long instructed federal courts to defer to federal agencies’ interpretations of ambiguous or unclear laws passed by Congress, rather than have judges act as regulatory policy-makers.
Chevron deference was established in the 1984 Supreme Court case Chevron v. Natural Resources Defense Council for two main reasons. First, because federal agencies are staffed with career civil servants and subject matter experts like scientists, researchers, and data analysts who understand the nitty-gritty details of regulatory policy-making far better than any given judge. Second was the importance of democratic accountability and the separation of powers, with Justice John Paul Stevens writing in the Chevron decision that “federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do.”
In her blistering dissent for Loper Bright, Justice Elena Kagan excoriated the Court’s right-wing majority for “giv[ing] itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.” The Court itself had inadvertently showcased the danger of having judges act as regulatory experts a day earlier, when Justice Neil Gorsuch repeatedly confused the air pollutant nitrogen oxide with the anesthetic nitrous oxide (more commonly known as “laughing gas”).
But Chevron’s repeal is no laughing matter. Allowing unelected, lifetime-appointed federal judges to invalidate countless regulatory protections based purely on their own political preferences will open the floodgates to a corporate legal assault on crucial regulatory protections—from clean air and water, to food and drug safety, to labor and civil rights.
Curiously, Chevron was once celebrated by conservatives (including the late Antonin Scalia), as it allowed the Reagan administration to continue its industry-friendly regulatory approach unimpeded by the more liberal federal courts at the time (the DC Circuit ruling overturned by SCOTUS in Chevron was written by then-circuit judge Ruth Bader Ginsburg). But over the past decade, as Democrats regained control of the executive branch and used Chevron deference to check corporate power, conservatives have changed their tune. Aided by the GOP’s packing of the courts with Federalist Society alumni, the conservative legal movement and Big Business now see the unelected judiciary as the best long-term venue for dismantling the administrative state.
Allowing unelected, lifetime-appointed federal judges to invalidate countless regulatory protections based purely on their own political preferences will open the floodgates to a corporate legal assault on crucial regulatory protections—from clean air and water, to food and drug safety, to labor and civil rights.
Their most powerful ally in this effort has been Justice Clarence Thomas, a former supporter of Chevron doctrine whose about-face has been equally opportunistic. According to The Lever, Thomas—who wrote a landmark opinion upholding Chevron in 2005—began working to overturn the doctrine after he and his wife received lavish undisclosed gifts and financial support from wealthy conservative benefactors, including real estate mogul Harlan Crow and Federalist Society leader Leonard Leo. Records unearthed by ProPublica have also revealed that Thomas was invited to fundraising events held by fossil fuel billionaire Charles Koch, whose donor network has long sought the overturning of Chevron.
These wealthy benefactors played a hidden role in the successful overturning of Chevron this term by using the disputes about federal fishing fees in the Loper Bright and Relentless cases as stalking horses against the doctrine. Petitioners in both cases were represented pro bono by lawyers with close ties to the Koch network. In Loper Bright, herring fisherman Bill Bright was represented by three lawyers who also work for Americans for Prosperity, one of the Koch Network’s most prominent organizations. In Relentless, the petitioners were likewise represented free of charge by the New Civil Liberties Alliance (NCLA), a right-wing litigation group that has received over $5 million from Koch-affiliated organizations and $4 million from Leonard Leo’s dark money groups.
The Court’s power brokers have also used amicus curiae (“friend of the court”) briefs to engage in judicial lobbying. In Loper Bright and Relentless, we found 19 examples of this practice. Right-wing think tanks Cato Institute, Competitive Enterprise Institute, and Texas Public Policy Foundation—who all filed anti-Chevron doctrine amicus briefs in Loper Bright—have received millions in donations from Koch organizations. The Board of Trustees for the Manhattan Institute, another Koch-funded Loper Bright amicus filer, is chaired by Justice Samuel Alito’s wealthy fishing buddy Paul Singer and counts Harlan Crow’s wife Kathy among its members. Leonard Leo has similarly bankrolled several amicus filers, including the Mike Pence-led Advancing American Freedom, the anti-abortion group Students for Life of America, and (conspicuously) the recently-launched fishing industry lobby group NEFSA.
Despite these flagrant conflicts of interest, neither Justice Thomas nor Justice Alito recused themselves from Loper Bright or Relentless. In fact, the only Justice to recuse from either Chevron case was Ketanji Brown Jackson, who had participated in oral arguments for Loper Bright while serving as a circuit judge.
The devastating impact of Chevron repeal has been compounded by other radical party-line power-grabs made by the Court this term.
The Loper Bright decision is already bearing fruit for its corporate supporters. Just hours after the decision, Eastern District of Texas Judge Sean D. Jordan cited it in his decision to partially block a Department of Labor rule that would have made over 4 million workers eligible for overtime pay. Loper Bright has also been cited in at least four other legal challenges against the DOL’s protections for tipped and gig workers, as well as a new lawsuit filed by three New Jersey hospitals against HHS rules governing Medicare reimbursement. Experts at the Center for American Progress have outlined the many other regulatory protections that could be at risk post-Chevron, including fair housing and anti-discrimination rules, relief for student borrowers, the EPA’s new vehicle and power plant emissions standards, and the CFPB’s crackdown on predatory junk fees.
The devastating impact of Chevron repeal has been compounded by other radical party-line power-grabs made by the Court this term. In SEC v. Jarkesy, the conservative majority made it much harder for the federal government to prosecute white collar criminals, while also threatening the structure of many administrative agencies. And in Corner Post v. Board of Governors of the Federal Reserve System, the Justices functionally eliminated the statute of limitations for challenging new federal regulations. In her dissent for the latter, Justice Jackson warned that “the tsunami of lawsuits against agencies that the Court's holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government.”
Of course for the right-wing, devastation is the goal. The Court’s dismantling of the administrative state follows Donald Trump’s own attempt to do so in the waning days of his presidency through the short-lived Schedule F scheme, which would have empowered the president to fire thousands of career civil servants at will and replace them with political loyalists. Though repealed by the Biden administration, restoring Schedule F remains a central plank of both Trump’s 2024 campaign and the Heritage Foundation’s Project 2025.
Corporate actors and right-wing activists are attacking the administrative state because they know how important it is for protecting the public from unchecked corporate power.
If nothing else, the end of Chevron should end debate among court-watchers as to whether any of the Roberts Court’s six conservative members (including Loper Bright author John Roberts himself) are “moderate.” Loper Bright is one more example in a series of landmark rulings— including Citizens United v. FEC, Janus v. AFSCME, Dobbs v. Jackson Women’s Health, and the recent Trump v. United States—which reveal what John Roberts and his Court actually care about. They have no regard for long-held precedent or for the rule of law, only far-reaching power-grabs that benefit the Federalist Society and Big Business. Their flagrant disregard for judicial ethics and the separation of powers should compel Congress to rein in the Court’s unchecked power by codifying Chevron deference into law, enacting a binding and enforceable Supreme Court ethics code, impeaching Justices Thomas and Alito, and expanding the Supreme Court.
Corporate actors and right-wing activists are attacking the administrative state because they know how important it is for protecting the public from unchecked corporate power. So long as the Supreme Court retains its corrupt right-wing majority, the future looks bright for Big Business. For the rest of us, the Court’s relentless power-grabs will make everyday life much worse.
A monumental case against Big Oil could go to a jury trial. But the industry has undertaken a "stunning and unprecedented campaign" to have the case dismissed, according to the The Guardian.
The U.S. Supreme Court on Monday asked the Biden administration for its position on a climate lawsuit against Big Oil following a pressure campaign the industry has mounted to have the court dismiss it.
The case, brought by the city and county of Honolulu, is one of dozens of state and local lawsuits seeking to hold Big Oil to account for the climate impact that its products have had and for the deception and disinformation used to sell them. The industry could be found liable for many billions of dollars if such cases reach jury trials, and so a group of companies has filed a petition, supported by legal briefs and a public advertising campaign, to the Supreme Court to hear their case for dismissal.
The Center for Climate Integrity (CCI) wrote Monday that the solicitor general, the administration lawyer who will handle the request, should advise the Supreme Court that states and municipalities can file these cases in state courts—to ignore Big Oil's petition, effectively.
"Big Oil companies are fighting desperately to avoid trial in lawsuits like Honolulu's, which would expose the evidence of the fossil fuel industry's climate lies for the entire world to see," Richard Wiles, the group's president, said in a statement. "Communities everywhere are paying dearly for the massive damages caused by Big Oil's decadeslong climate deception. The people of Honolulu and other communities across the country deserve their day in court to hold these companies accountable."
In November, the Hawaii Supreme Court rejected a previous Big Oil effort to stop the case, which set the table for a potentially momentous jury trial—none of the climate lawsuits have yet reached that stage, and City and County of Honolulu v. Sunoco et al. could be the first. The industry had tried to argue that the lawsuit sought to regulate interstate and international carbon emissions, which states don't have the right to do, and thus the case couldn't be brought in state court. The court ruled the case wasn't about the regulation of carbon emissions.
Big Oil then filed its Supreme Court petition, backed by a major campaign: right-wing groups have not only filed amicus briefs with the court but also mounted an unusually public campaign calling for the court to dismiss Honolulu and other such cases.
"This looks to be the most aggressive campaign yet to influence the court on behalf of Big Oil," Kert Davies, CCI's director of special investigations, toldE&E News. "The fossil fuel industry and its allies are clearly threatened by these legal efforts to hold them accountable, and they're going to unprecedented lengths to send out distress signals in the hope they'll be rescued from standing trial."
"Far-right fossil fuel allies have launched a stunning and unprecedented campaign pressuring the Supreme Court to shield fossil fuel companies from litigation that could cost them billions of dollars," according toThe Guardian, which tied the campaign to Leonard Leo, the so-called architect of the Supreme Court, thanks to his influence in conservative legal circles and over Donald Trump, who appointed three of the current justices as president.
An ad produced by the Alliance for Consumers, a nonprofit that has ties to Leo, posits the Supreme Court as the "solution" to the overreach of "left-wing officials" who are pushing a political agenda through the courts by misusing public nuisance lawsuits.
Progressive activists, backed by the liberal dark money machine, are weaponizing a form of legal case (that was intended for use strictly on small, local issues) to advance their agenda nationwide.
Here’s how their scheme operates ⬇️https://t.co/Cix47F15I1 pic.twitter.com/hUxLNpWJYf
— Alliance For Consumers (@for_consumers) May 1, 2024
Conservatives have also published opinion pieces in favor of the Big Oil petition in outlets such as Bloomberg Law, The Hill, National Review, and The Wall Street Journal, which titled its piece "Honolulu Tries to Mug Energy Companies."
"I have never, ever seen this kind of overt political campaign to influence the court like this," Patrick Parenteau, a professor at Vermont Law School, toldThe Guardian.
The fact that the Supreme Court asked the solicitor general for the administration's position indicates that some justices are interested in the case—the court throws out thousands of petitions a year without asking for such input.
CCI, like the Hawaii Supreme Court, finds no merit in the industry's legal argument that Honolulu is an attempt to regulate emissions.
"Lawsuits like Honolulu's are not seeking to solve climate change or regulate emissions—these plaintiffs simply want Big Oil to stop lying and pay their fair share of the damages they knowingly caused," Alyssa Johl, the group's vice president of legal and general counsel. "The solicitor general should make clear that federal laws don't preempt the ability of communities to hold companies accountable for their deceptive claims under state law."
In a similar case last year, Biden's solicitor general sided with Colorado municipalities that had filed suit and rejected the arguments in a Big Oil petition, urging the Supreme Court not to take up Big Oil's petition. The court followed the administration's advice on that and a few related cases. Roughly 40 states and municipalities have filed such suits since 2017.
President Biden has pledged to "strategically support" climate lawsuits against polluters, and last year the Justice Department filed a Supreme Court brief in support of communities seeking to hold Big Oil accountable in state court.
https://t.co/yw1YulU9fM
— Center for Climate Integrity (@climatecosts) June 10, 2024
There remains the possibility that the federal government itself could bring a case against Big Oil for propagating disinformation and blocking a green transition. Last month, Sen. Sheldon Whitehouse (D-R.I.) and Rep. Jamie Raskin (D-Md.) called on the U.S. Department of Justice to investigate the industry for those alleged crimes, following a three-year probe that their congressional committees had conducted.
Monday's Supreme Court request of the solicitor general notes that Justice Samuel Alito didn't take part in the considerations of the case—"probably because he owned stock in ConocoPhillips, a defendant in the case," according to The Guardian.
"This subpoena is a direct result of Mr. Leo's own actions and choices," said Judiciary Committee Chair Dick Durbin.
"Incredible," said one journalist on Friday of right-wing legal activist Leonard Leo's reasons for refusing to comply with a subpoena from the Senate Judiciary Committee as the panel investigates conservative Supreme Court justices' relationships with Leo and other Republican operatives and donors.
The Federalist Society co-chairman told The Washington Post that the subpoena was "politically motivated."
"I am not capitulating to [committee Chair Dick Durbin's (D-Ill.)] lawless support of Sen. Sheldon Whitehouse and the left's dark money effort to silence and cancel political opposition," said Leo, who has lobbied for the appointments of far-right judges to federal benches, in a statement.
The subpoena came over four months after the committee voted along party lines to subpoena Leo and billionaire GOP donor Harlan Crow following numerous reports about luxury travel and gifts they and others bestowed on Justices Clarence Thomas and Samuel Alito.
ProPublica revealed last June that Leo organized a luxury fishing trip to Alaska for Alito, with lodging and private jet travel paid for, in 2008. The trip was not included on Alito's federally required financial disclosure forms, continuing a pattern that ProPublica first reported on last April with several luxury vacations, real estate transactions, and other financial gifts to Thomas that were paid for by Crow.
Durbin said Thursday that the subpoena was issued because of the "blanket refusal to cooperate" with the investigation that Leo has displayed since last July.
"His outright defiance left the committee with no other choice but to move forward with compulsory process. For that reason, I have issued a subpoena to Mr. Leo," said Durbin. "Mr. Leo has played a central role in the ethics crisis plaguing the Supreme Court and, unlike the other recipients of information requests in this matter, he has done nothing but stonewall the committee. This subpoena is a direct result of Mr. Leo's own actions and choices."
The ethics violations revealed by ProPublica's reporting forced the Supreme Court last fall to adopt a code of conduct for the first time, modeled on the rules followed by judges on lower federal courts.
But ethics watchdogs labeled the code a "toothless PR stunt" and a "cover-up for Clarence Thomas," as it did not include an enforcement mechanism and provided the justices with discretion over recusal decisions.
Debt relief advocates called on Alito to recuse himself last year from two cases pertaining to Biden's student debt cancellation program, citing the reporting on Leo's gifts to the justice. The plane Alito took to Alaska was owned by billionaire investor Paul Singer, who has financially backed groups that lobbied the court to overturn Biden's plan.
The court struck down the debt relief program last June.
Like former President Donald Trump, said Alex Aronson, former chief counsel for Judiciary Committee senior member Sen. Sheldon Whitehouse (D-R.I.), "the other man most responsible for shaping our Supreme Court's runaway majority is a lawless con man and crook."
Caroline Ciccone, president of government watchdog Accountable.US, said Friday that "Supreme Court billionaire matchmaker Leonard Leo" is the force behind "a full-blown corruption crisis has plagued the high court for over a year, undermining its credibility and plummeting public trust in the court to record lows."
"Today's subpoena is a critical step toward accountability, and toward ensuring that our high court adheres to the highest possible ethics standards," said Ciccone. "As a result of the strong leadership of Chairman Durbin and the Judiciary Committee, we can now begin to get to the bottom of the corruption crisis pervading the Supreme Court."
With Leo refusing to comply with the subpoena, Democrats would need to hold a vote in the closely divided Senate to seek enforcement.
Former Trump aide Peter Navarro was found guilty of contempt of Congress for defying a subpoena from the committee that investigated the January 6, 2021 insurrection, and reported to a federal prison last month to serve his four-month sentence.
"Leonard Leo thinks he's above the law just like Navarro did," said one attorney. "We'll see if he's right."