Supreme Court justice warns of the ‘greatest judicial power grab since Marbury v. Madison’

The Supreme Court looks eager to seize power, now that it is dominated by Bush and Trump appointees.

Justice Breyer warns of the "greatest judicial power grab since Marbury v. Madison."(Photo credit: Paul Marotta/Getty Images,)
Justice Breyer warns of the "greatest judicial power grab since Marbury v. Madison."(Photo credit: Paul Marotta/Getty Images,)

The Supreme Court’s conservative majority on Wednesday appeared likely to execute what Justice Stephen Breyer described as the “greatest judicial power grab” since its 1803 decision holding that federal courts have the power to declare laws unconstitutional.

Breyer’s warning referred to Kisor v. Wilkie, a case for which the court heard oral arguments this week. Chief Justice John Roberts suggested in some of his questions during that session that he would prefer a somewhat more moderate decision than the outcome favored by the court’s right flank. So it is possible that the outcome in Kisor will only make incremental steps toward a goal popularized by the conservative Federalist Society during President Barack Obama’s time in the White House — transferring power from executive branch agencies to a judiciary that is increasingly dominated by the Society’s hand-selected judges.

Nevertheless, the court’s four liberal justices spent much of Wednesday in a defensive crouch, trying to warn their colleagues of the consequences that could result if their conservative colleagues toss out a legal doctrine that, according to Justice Sonia Sotomayor, stretches back to at least 1850.

Kisor involves the future of a doctrine known as “Auer Deference,” so named because of Justice Antonin Scalia’s unanimous opinion in Auer v. Robbins. That case held that courts should defer to a federal agency’s reasonable interpretations of its own regulations.


Many federal laws lay out a broad policy, then empower one or more federal agencies to create regulations implementing that policy. Federal anti-pollution law, for example, instructs the Environmental Protection Agency to require certain power plants to use cleaner methods of producing power as technology advances. The Affordable Care Act requires plans sold in Obamacare exchanges to offer coverage that is “equal to the scope of benefits provided under a typical employer plan,” but tasks federal agencies with determining what the scope of such benefits are and drafting regulations that implement this requirement.

Sometimes, however, these regulations are drafted ambiguously. Other times, a situation may arise that the regulators did not anticipate, and it will be unclear how a particular regulation governs that situation. Auer held that, when a regulation is ambiguous, courts should defer to the agency’s interpretation of its own regulation so long as that interpretation is reasonable.

As Sotomayor noted, some version of this rule of deference has existed for a very long time. At one point during Wednesday’s argument, for example, she read from an 1850 case holding that courts should be “restrained” when second guessing an agency unless the agency’s error is “plainly manifest.”

Decisions like Auer, moreover, were not especially controversial within the Supreme Court until very recently. Auer, after all, was a unanimous decision written by a conservative icon.

What changed is that, in 2008, the American people elected Obama, of whom the Federalist Society is not especially fond. Shortly after Obama won reelection in 2012, Justice Samuel Alito suggested in a speech to the Society that America was trapped in a “moment of utmost sterility, darkest night, most extreme peril.”


Congress, moreover, grew both increasingly dysfunctional and increasing irresponsive to the will of the people during Obama’s time in office. Democratic House candidates, after all, won the popular vote in 2012, yet thanks to gerrymandering and similar pathologies, did not win a majority. So Obama started to lean harder on the power already granted to his agencies by existing federal laws, rather than making futile efforts to pass legislation.

And so conservative legal elites turned against agency regulation, and against doctrines that require courts to defer to federal agencies. Justice Clarence Thomas has even suggested that any regulation that imposes “generally applicable rules of private conduct” or that “involves an exercise of policy discretion” is unconstitutional.

It’s unlikely that anyone on the Supreme Court not named “Neil Gorsuch” would go as far as Thomas, but cases like Auer still pose a troubling question for the Federalist Society and its allies on the bench: Why vest power in an executive branch that may someday be controlled by someone like Obama, when you can shift that power to a judiciary that’s been remade by Trump’s judges?

And so the court’s conservative majority seemed eager to limit judicial deference to federal agencies.

There may be a meaningful divide between Thomas, Gorsuch, and Alito on the one hand, and Chief Justice John Roberts and Brett Kavanaugh on the other. Gorsuch spent the morning obsessed with poking holes in Auer — at one point suggesting that it is an “edifice” that may “fall on itself.” And Alito often joined in, at one point hinting that a common justification for Auer Deference — the fact that agencies know more about their own regulations than judges — does not apply to a question of linguistic interpretation.

Roberts, by contrast, may be less interested in writing an opinion that uses the words “Auer v. Robbins” and “overruled” in the same sentence. He did, however, emphasize that Auer requires an agency’s interpretation to be “reasonable,” and he suggested that Auer has been so heavily caveated by subsequent decisions that he’s unsure if it matters if it is overruled.


Taken together, these remarks suggest that Roberts could write an opinion that does not explicitly overrule Auer, but that give judges such broad discretion to decide what constitutes a “reasonable” interpretation that Auer will remain good law in name only.

Kavanaugh, meanwhile, asked what may prove to be the most significant questions of the morning. Looming over Kisor is a much bigger battle over judicial deference. Chevron v. Natural Resources Defense Council held that, when an agency claims an ambiguous federal law gives it the power to regulate, courts should generally defer to that interpretation of the law. Many of the same conservative legal elites who oppose Auer, including several members of the Supreme Court, are even more eager to overrule Chevron. And a decision undercutting Chevron would be a legal earthquake.

Auer allows agencies to bypass the costly and time-consuming “notice and comment” process that those agencies must use to promulgate new regulations whenever they are asked how to interpret an existing regulation, but Chevron speaks to the question of whether a particular agency is allowed to promulgate a particular regulation in the first place. Get rid of Chevron, and the Supreme Court’s conservative majority could claim veto power over thousands of federal regulations.

Kavanaugh asked three times why an agency faced with an unclear regulation couldn’t just use the notice and comment process — a process that often takes years to complete — in order to clarify that regulation. These questions suggest that Kavanaugh is likely to oppose Auer, but it also leaves open the possibility that he may be less eager to attack regulations that comply with the notice and comment process.

One way or another, however, the Supreme Court is likely to consolidate power within itself that previously belonged to federal agencies. That ultimately means a less democratic society. For while agency leaders are not elected, they are responsible to a president who, setting aside the present occupant of the White House, typically won an election. The judiciary, by contrast, is made up of unelected lawyers who serve for life. And the median justice is now well to the right of the median American.