Right-Wing Supreme Court Imperils Democratic Self-Governance

On the last day of its term, the U.S. Supreme Court on Thursday issued an opinion that gutted the ability of the Environmental Protection Agency (EPA) to regulate power plants and take meaningful steps to address climate change. West Virginia v. EPAwas grounded in the "major questions doctrine," an interpretive approach that dramatically weakens the ability of government to actually do things, while just as dramatically strengthening the ability of the judiciary to intervene. That combination poses serious threats to American self-governance and democracy itself.

This judicial term has been a remarkable tour de force of the conservative supermajority deploying its power in unprecedented ways.

The opinion addressed a never-enacted plan by the EPA to regulate power plants to control air pollution. The plan was never actually implemented because the Supreme Court stayed the regulation (i.e., stopped it from taking effect) while it was under review, a decision Justice Elena Kagan's dissent noted was "unprecedented" when it occurred. The Court then took the additional remarkable step of deciding to hear the case even though the Biden administration had said it had no intention of implementing the plan reviewed by the Court and was instead looking at different ways to regulate power plants. There was, in other words, no live "case or controversy," which is normally a predicate for judicial review. This opinion, as Kagan aptly explains, is therefore best understood as an "advisory opinion" on a potential future EPA rule.

And what is the Court "advising" the EPA in this opinion? It is advising the EPA that it can do very little to combat climate change.

In the Clean Air Act, Congress told the EPA to select the "best system of emission reduction" for power plants. The majority decided that the EPA's choice was wrong in this instance, because in "extraordinary cases" an agency can't take a particular action unless it can "point to 'clear congressional authorization' to regulate in that manner." In other words, because climate change is very important and because Congress did not tell EPA that it could regulate power plants in precisely the way EPA planned to regulate here, the majority of the Court said Congress never intended for EPA to regulate in that manner. The majority also doubted that EPA could act in the way it wanted because EPA itself "had never regulated in that manner."

This opinion--about a pretty technical EPA regulation that was never actually implemented--is so consequential for administrative law and democratic governance more broadly because of how narrowly the majority conceives of the universe of appropriate agency actions. The major questions doctrine embraced by the Court in this opinion severely constrains the ability of agencies to act in fulfillment of their statutory mandates. The doctrine says, in short, that if an issue is really important--if it is an "extraordinary case"--then the Court will not permit the agency to act unless Congress previously explicitly said the agency could do the particular thing it is trying to do. Even if a court believes Congress told an agency to act on a specific issue, the major questions doctrine also ensures that agencies cannot do anything new to combat problems in its policy orbit, because novelty in policymaking is also a red flag for the Court. (For the more legalese-inclined, Blake Emerson, assistant professor of law at the UCLA School of Law, has provided a good rundown of the relationship between the major question doctrine and nondelegation in the Yale Journal on Regulation).

In other words, in those "extraordinary cases" covered by the major questions doctrine, agencies will be powerless to act unless Congress anticipated the exact situation confronting the agency and accurately predicted the agency's determination of the best policy response. Yet as Kagan reminded us in her dissent, Congress often makes broad delegations of power like the one in this case--directing EPA to implement the "best" method--precisely "so an agency can respond, appropriately and commensurately, to new and big problems." Congress--our elected representatives--often chooses to leave those technical policy decisions in the hands of administrative agencies because Congress believes that agencies--staffed by career civil servants who specialize in a particular policy area--would be better equipped to figure out the "hows" of implementation. The right-wing majority on the Court rejected this sensible approach to legislation and has hamstrung the ability of agencies to meaningfully enact legislation in the future.

But while greatly limiting the powers of both agencies and Congress (which had chosen to delegate implementation to the agency in this instance), the majority greatly enhanced its own powers. How, for example, will any given court know whether an issue presents an "extraordinary case" that falls within the major questions doctrine? The majority gestures towards the existence of political debate and high costs as some indicators, but at bottom, major questions fall into a vague, you-know-it-when-you-see-it category of cases. In practice this means that judges will be able to intervene to block regulations they do not like whenever they can make a plausible case that the issue is too important to let the agency act on it. The opinion thus simultaneously weakens the ability of government to respond to pressing social problems and strengthens the ability of the judiciary to shut down any attempts that are made by Congress and the agency via invocation of the infinitely malleable concept of "extraordinary cases." Preventing the political (as in, electorally accountable) branches from acting while ensuring that the judiciary has more power to stop government policies in their tracks are both outcomes that exacerbate the democratic challenges facing us right now.

This judicial term has been a remarkable tour de force of the conservative supermajority deploying its power in unprecedented ways. A crucial outcome of this term has been the Court's weakening of the ability of the government to act to address pressing social problems, including both gun violence and climate change, while simultaneously strengthening the power of the courts to make their own independent judgments about when elected representatives and our civil servants have acted in ways they do not like.

Judges are unelected, they are around for life, and as we have seen in painful technicolor in the past few weeks, they have immense--and growing--power to impose their personal understandings of political and moral virtues on the rest of us.

As Kagan said in dissent in yesterday's opinion, "Courts should be modest." The Court has been far from modest this term, embracing "raw judicial power" in an historic and dangerous attempt to shape the nation in its preferred image. A powerful and reactionary judiciary at work alongside a dysfunctional Congress and hamstrung bureaucracy is a recipe for disaster.

Courts that do not believe in the legitimacy of the administrative state--as many members of the current Supreme Court do not--will continue to chip away at government's ability to address real problems while enhancing its own powers to rule by judicial fiat, leaving us all significantly worse for wear.