Kavanaugh’s Court begins its inevitable power grab with Kisor v. Wilkie

We're going to miss judicial restraint now that it is gone.

CREDIT: Melina Mara-Pool/Getty Images
CREDIT: Melina Mara-Pool/Getty Images

The Supreme Court took two important actions on Monday, one which received a raft of high-profile coverage, and another that was barely noticed outside of the legal press. Together, these two actions offer a window into how the Court’s new Republican majority is likely to operate in the near future — slowly on hot button issues that will shine a spotlight on the Court’s conservatism, but much faster on the wonkier, more-difficult-to-understand issues that matter most to the conservative Federalist Society.

The biggest news out of the Court on Monday, at least if you judge by the number of headlines it produced, was the Court’s decision not to hear two lawsuits involving red states’ efforts to defund Planned Parenthood. Much of the reporting on these cases inflates their significance, but the fact that neither Chief Justice Roberts nor Brett Kavanaugh agreed to hear these cases suggests that they want to give the nation some time to forget about how Kavanaugh got his current job before they declare outright war on reproductive choice.

The most important news, however, was the Court’s announcement that it will hear Kisor v. Wilkie, a case asking the Court to transfer power from the executive branch to the judiciary. Kisor is likely to be the first of many such cases, and the Court’s decision to hear this case so quickly after Kavanaugh’s confirmation suggests that the Court plans to consolidate power quite rapidly.


There are several important Supreme Court doctrines which are best understood as doctrines of forbearance — all of which are now endangered by the Roberts Court. “It is emphatically the duty of the Judicial Department to say what the law is,” Chief Justice John Marshall famously wrote in Marbury v. Madison, but what happens when the law is so vague or ambiguously drafted that it can fairly be read multiple ways? In these cases, various doctrines counsel that the courts should defer to the elected branches.


The reason why is simple. When the law is genuinely unclear, it is better to leave policy matters up to officials who are democratically accountable than to place power in black-robed lords who serve for life.

The most important of these forbearance doctrines was announced in United States v. Carolene Products, which held that courts should treat all laws with a presumption of constitutionality — albeit a presumption that can be rebutted if the law violates an explicit constitutional provision, harms the democratic process itself, or is rooted in “prejudice against discrete and insular minorities.”

Carolene Products was a liberal Court’s response to an era when conservative justices claimed that some of the vaguest provisions of the Constitution — provisions such as the command that no one shall be denied “liberty” without “due process of law” — forbade basic labor protections such as a minimum wage or a right to unionize. With Carolene Products, the Court announced that it no longer saw ambiguous constitutional provisions as an invitation to write their fantasies onto the Constitution.

So Carolene Products counseled judicial deference to the legislature whenever someone claimed that a vague provision of the Constitution rendered a law unconstitutional. Another case, Chevron v. Natural Resources Defense Council, instructed courts to show a similar degree of forbearance when someone challenges a federal agency’s regulation.

While some federal laws are complete in and of themselves, others instruct federal agencies to implement the details of a federal policy, and to impose binding rules to enforce that policy. These rules are known as “regulations.”


The Clean Air Act, for example, instructs the Environmental Protection Agency to study new technologies to ensure that certain power plants always use “the best system of emission reduction” that is both technologically and economically feasible to use. Congress sets the broader policy, but it’s up to the EPA to update that policy as scientific developments make cleaner power possible.

Sometimes, however, an act of Congress is ambiguous, and it is unclear whether a particular statute authorizes an agency to promulgate a particular regulation. In these cases, Chevron counsels that the courts should defer to the agency’s reading of that statute.

A major reason why, as Justice John Paul Stevens explained for the Court in Chevron, is that such deference is more respectful of democracy than the alternative. “While agencies are not directly accountable to the people,” Justice Stevens wrote, “the Chief Executive is.” Thus, it is better for an agency that is democratically accountable, even indirectly, to make policy choices, rather than vesting the decision in judges with lifetime appointments and no accountability to the electorate.

The Kisor case, the case that the Court agreed to hear on Monday, involves a similar forbearance doctrine — when an agency’s regulation is itself ambiguous, courts should also defer to the agency’s reasonable reading of that regulation. This doctrine stretches back to 1945, when the Supreme Court held, in Bowles v. Seminole Rock & Sand Co., that an agency’s interpretation of its own regulation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Bowles was more recently reinforced by the Supreme Court’s unanimous decision in Auer v. Robbins.

The issue in Kisor is whether this doctrine of deference to an agency’s own interpretations of an ambiguous regulation — commonly known as “Auer deference” — should be overruled. There are almost certainly five votes on this Supreme Court to do so. And Kisor is likely to be the first of several opinions tearing down the Court’s forbearance doctrines.

The death of forbearance

Justice Clarence Thomas wrote Auer and Bowles‘ death warrants two years ago without even knowing it. In May of 2016, Justice Antonin Scalia was dead, and no one knew that America would soon award the presidency to a second-place finishing serial sexual predator. The Federalist Society was on the rocks. The aggressive judicial conservatism pushed by men like Thomas seemed dead.


In this moment of conservative despair, Thomas penned a dissenting opinion arguing that the Court should have taken up a case called United Student Aid Funds v. Bible — another lawsuit claiming that Auer and Bowles should be overruled. As Thomas noted in his Bible opinion, three members of the Court — himself, Chief Justice John Roberts and Justice Samuel Alito — “have repeatedly called for [Auer‘s] reconsideration in an appropriate case.”

Flash forward to the present, and these three justices have two new friends. Neil Gorsuch literally campaigned for the Supreme Court by broadcasting his desire to limit agency power. And Kavanaugh spent much of his time as a lower court judge frustrating the Obama administration’s efforts to regulate. Barring a miracle, Auer and Bowles are toast.

Nor is the Supreme Court likely to stop there. The Federalist Society, which plays a leading role in selecting Trump’s judicial nominees, hates agency regulation with the white-hot intensity normally associated with jilted lovers and Captain Ahab. Gorsuch quite openly declared his opposition to Chevron. Chief Justice Roberts carved a big chunk out of Chevron in a case called King v. Burwell. Even retired Justice Anthony Kennedy, who is well to the left of any member of the Court’s current Republican majority, wrote in one of his final Supreme Court opinions that “it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.”

It’s not hard to guess why conservatives on the Supreme Court and in the Federalist Society are so eager to see judicial forbearance doctrines fall. Again, the question these doctrines resolve is not what should our nation’s policies be. It is who should get to make that decision. Forbearance doctrines place power in democratically elected branches that will be controlled by Democrats at least some of the time. Overruling those doctrines shifts power to a Supreme Court that’s likely to be controlled by Republicans for the foreseeable future.

In a world without Chevron and Auer, Democratic administrations will have to seek permission from the Supreme Court’s Republicans every time an agency wants to take regulatory action. Republican administrations, meanwhile are much more likely to get a pass.

The impact of a Supreme Court veto over agency action, moreover, is compounded by the fact that the United States can barely still be described as a democratic republic. Trump is president right now because the Electoral College effectively counts votes cast by rural whites as more important than votes cast by more diverse residents of urban states. Recent elections notwithstanding, gerrymandering remains a yoke around the neck of Democratic House candidates. The malapportioned Senate treats every voter from blood red Wyoming as 67-times more important than a voter from blue California.

A Supreme Court veto over agencies means that Republicans will be able to promulgate new regulations if they only control the White House, but Democrats may be unable to govern unless they somehow manage to capture the presidency and both houses of Congress.