Two years ago, Reagan-appointed Chief Judge Royce Lamberth suspended all federal funding for embryonic stem cell research in a sweeping opinion that even invalidated funding permitted under President George W. Bush’s policies. Despite the fact that the Clinton, Bush and Obama Administrations all agreed that Judge Lamberth misinterpreted federal law, Lamberth relied on a federal law forbidding funding of “research in which a human embryo or embryos are destroyed” to hold that federal spending not only cannot fund the destruction of a new embryo, it also cannot fund research that builds on past research that resulted in the destruction of an embryo.
Lamberth’s decision was eventually reversed by a conservative panel of the United States Court of Appeals for the District of Columbia Circuit. The appeals court held, correctly, that even though Lamberth might have proposed a plausible reading of federal law, longstanding Supreme Court precedent generally requires courts to defer to an agency’s reading of a statute. As the appeals court explained, “the plaintiffs are unlikely to prevail because Dickey-Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an [embryonic stem cell] from an embryo, it does not prohibit funding a research project in which an [embryonic stem cell] will be used.” Yesterday, the Supreme Court announced it would not hear this case, effectively killing this challenge to stem cell research.
This is an important victory for science, and it is just as much a victory for judicial restraint. As the near-success of the Affordable Care Act lawsuits demonstrate, conservative judges and justices are increasingly willing to substitute their policy preferences for the law, even when they must rely on legal theories that, in the words of one of the nation’s most conservative judges, have no basis “in either the text of the Constitution or Supreme Court precedent.” The requirement that judges defer to agencies in interpreting ambiguous statutes is an important check on the judiciary’s ability to impose their policy views on the nation. Agency leaders change with each presidential election; judges do not. And so the power to interpret a genuinely ambiguous statute should rest with officials whose legitimacy flows more closely from the will of the people.