The Supreme Court's Relentless Corruption

Tomorrow, the Supreme Court will hear oral arguments in two related cases, Loper Bright v Raimondo and Relentless v Department of Commerce, in which conservatives are trying to do away with 40 years of Supreme Court precedent and basic common sense by shifting responsibility for the most minute details of government regulation – think “exactly how much chicken feces can safely be in the wings you eat during the Super Bowl,” and then keep in mind that there are an inconceivably large number of similarly complex decisions that help keep you alive and healthy – from the hundreds of thousands of scientists and subject matter experts employed by federal government agencies to the various Matt Gaetzes and Lauren Boeberts who comprise the United States Congress and, perhaps even more frighteningly, to the nine members of the Supreme Court itself. 

Exactly 40 years ago, the Supreme Court’s Chevron v NRDC¹ ruling established one of the most important precedents in modern American history: That when Congress assigns a goal to a government agency, the courts generally defer to that agency when it takes reasonable steps to accomplish that goal. 

Madiba K. Dennie explains:

Under current law, agency experts have the flexibility to implement and refine Congress’s directives, working out the nitty-gritty of applying broad legislative instructions to specific circumstances as they arise—while remaining subject to oversight from every branch of government. Administrative agencies have institutional and technical competencies that legislators lack, so Congress draws lines and allows agencies to color within them. It’s great for Congress to pass a law about air quality, for instance, but when it comes to actually determining stuff like the maximum allowable eight-hour ozone concentration, I would prefer for scientists to take the lead over Lauren Boebert. 

This makes so much sense even Clarence Thomas has written Supreme Court opinions invoking Chevron deference, like this one from 2005:

If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.

But we’ll come back to Thomas in a minute.

Theoretically, eliminating Chevron deference would mean Congress would have to get a whole lot more specific in the legislation it passes – and start passing new legislation pretty much constantly. All those highly technical decisions hundreds of thousands of scientists and experts employed by the federal government currently make would suddenly be made by the folks who just spent a day poring over nude pictures of Hunter Biden. Of course, Congress wouldn’t actually start making those decisions; it couldn’t do so even if it wasn’t fundamentally dysfunctional. Which … well, you know. What would actually happen is that the Courts would be in charge. 

Vox’s Ian Millhiser explains that means Republicans would be in charge:  

One of the leading proposals, championed by a then-obscure federal judge named Neil Gorsuch, was to overrule the Supreme Court’s Reagan-era decision in Chevron v. National Resources Defense Council (1984) […] The partisan implications of Gorsuch’s proposal should be obvious. While control of the executive branch potentially changes hands every four years, Republican appointees have a supermajority on the Supreme Court and are unlikely to lose control of the judiciary any time soon.² Most of the Court’s members, moreover, are close allies of the Federalist Society who were carefully vetted by its leadership. So overruling Chevron means transferring power to one of the GOP’s — and the Federalist Society’s — most durable sources of political power.

Let’s go back to Madiba K. Dennie for the real-world consequences we’d face in that scenario: 

Because of agency regulations, the country has fewer workplace injuries, fewer children with lead poisoning, and fewer food illness fatalities. It has safer roads and cleaner water. If conservatives have their way, Loper Bright could restrict the government from doing this kind of necessary work.

By now you’re probably wondering What are we even doing here? Who could possibly want an outcome like this, and why?

Well, the conservative movement desperately wants it. There are a few reasons for that, all of them bad. One reason is that the conservative movement generally wants big corporations to be able to do whatever big corporations want to do.³ Another reason is that eviscerating the government’s ability to ensure your car is not a death trap and your apple sauce is not  poisonous helps conservatives pretend to be The Party Of Small Government, working tirelessly to Stop Big Brother From Trampling Your Freedom, which is a very important pretense to keep up if you’re trying to distract people from the fact that you’re actually quite busy trying to ban abortion and contraceptives and same-sex marriages and drag brunches and books that acknowledge the existence of trans people and who even knows what else.⁴

Okay, time to bring Clarence Thomas back into the picture. Remember what I said earlier about Thomas having written a decision in 2005 that upheld Chevron deference? Bad news! He seems to have changed his mind. 

What could have caused such a change of heart?

Well, one thing that sure doesn’t look great is that the Koch network has led the charge in attempting to overturn Chevron, and Clarence Thomas is awfully chummy with the Kochs; Thomas has even participated in Koch fundraising events. That led Senator Dick Durbin, the chair of the Senate Judiciary Committee, to call for Thomas to recuse from Loper:

Justice Thomas hid the extent of his involvement with the Koch political network and never reported gifts associated with these engagements. The Koch network has invested tremendous capital to overturn longstanding legal precedent known as Chevron deference, which would handcuff regulators and serve the interests of corporate fat cats. As more details are revealed of Justice Thomas’s undisclosed involvement with the Koch political network, there are serious questions about his impartiality in cases squarely confronting the Chevron doctrine.

As Chris Geidner has noted, the case for Thomas’s recusal is straightforward:

If one reads the federal recusal statute at its most direct, it’s pretty easy to make an argument that [Thomas] should sit out.

“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” the statute reads.

The New York Times has an extensive report today detailing the Koch network’s involvement in Loper:

The Supreme Court is set to hear arguments on Wednesday that, on paper, are about a group of commercial fishermen who oppose a government fee that they consider unreasonable. But the lawyers who have helped to propel their case to the nation’s highest court have a far more powerful backer: the petrochemicals billionaire Charles Koch.

[…]

The lawyers who represent the New Jersey-based fishermen, are working pro bono and belong to a public-interest law firm, Cause of Action, that discloses no donors and reports having no employees. However, court records show that the lawyers work for Americans for Prosperity, a group funded by Mr. Koch, the chairman of Koch Industries and a champion of anti-regulatory causes.

The Times notes that Cause of Action claims Koch doesn’t have anything to do with the case:

A spokeswoman at Cause of Action said the group was within its constitutional rights to not disclose its donors. The spokeswoman, who declined to be identified, said that Cause of Action and Americans for Prosperity were separate organizations. Neither Mr. Koch nor Koch Industries was involved in the case, she said. Koch Industries did not respond to requests for comment.

Well, sure. I mean, Charles Koch is not personally the plaintiff. But his organizations are apparently bankrolling the case. And not just by providing the lawyers who represent the plaintiff: The list of organizations that have filed amicus curiae briefs with the Court in Loper Bright include several that have enjoyed Koch funding: There’s the Cato Institute (founded by the Kochs), Pacific Legal Foundation, and Competitive Enterprise Institute (a “Koch Industries Climate Denial Front Group,” according to Greenpeace.) Plus organizations with other cozy ties to Clarence Thomas: the Manhattan Institute (which lists among its board members Kathy Crow, the wife of Thomas benefactor Harlan Crow), and America First Legal founded by Stephen Miller and Ginni Thomas pen pal Mark Meadows) among others. 

So basically repeal of Chevron would be a disastrous outcome with dire consequences for pretty much everyone and nobody thinks it’s a good idea except the conservative billionaires and activists who are behind the case and who totally coincidentally fund Clarence Thomas’s lavish lifestyle and help his wife try to overturn elections.

“Amicus curiae” means “friend of the court,” by the way. It’s a little on the nose, don’t you think?

1. A majority of justices on the Court at the time were appointed by Republican presidents, as has been the case continuously since 1969.

2. Unless we expand the Court. (This is my footnote, not in Ian’s original.)

3. As long as big corporations don’t want to put even a little bit of effort into overcoming centuries of structural racism and sexism; when that happens, big corporations have gotten too “woke” and must be destroyed. But as long as they’re just needlessly endangering the lives of their customers – or, even better, their customers and their employees – movement conservatives are happy.

4. Dancing, maybe? Probably dancing.