Justice Antonin Scalia’s greatest gift to the conservative movement was teaching judges that humility is for suckers.
Scalia, of course, is best known for popularizing originalism — the belief that the only legitimate way to interpret the Constitution is to read its words as they were originally understood by the framers’ contemporaries. But Scalia was neither a historian nor a linguist. He lacked the training necessary to effectively probe how people two centuries ago might have understood a particular phrase.
When confronted with a difficult question of how a particular provision of the Constitution was originally understood, Scalia did not familiarize himself with the relevant historiographies and then comprehensively examine original documents to try to find an answer. Even if he’d wanted to do so, he didn’t have the time. The Supreme Court spends months, not years or decades, considering individual cases.
The historical questions Scalia claimed to be able to answer were often the sorts of questions that scholars ponder for their entire careers, only to retire with a bevy of new, equally vexing questions. Scalia’s originalism was the Dunning-Kruger Effect placed in the hands of one of the nation’s most powerful men, and given free rein to decide how we should read our Constitution.
On Wednesday, the Supreme Court will hear another case arising from Scalia’s unconscious incompetence — except that Kisor v. Wilkie is not a case about a lawyer pretending to be an historian. It’s a case about lawyers claiming to be experts in human psychology.
And it is also a case about the world’s most famous monument to the Dunning-Kruger Effect in action. Scalia may have helped conservative legal elites rally around the plaintiff’s arguments in Kisor, which are fundamentally about shifting power from the executive branch and towards the judiciary. But it took a president who was too stupid to understand what he was doing to give James Kisor the five votes he’ll need to prevail in the Supreme Court.
Donald Trump will almost certainly usher in an era of much weaker presidents and far stronger judges. He’s complicit in a massive transfer of power from an elected branch of government to the one unelected branch. And he’s too dumb to realize what he’s done.
On the surface, Kisor involves the sort of hypertechnical issue that primarily interests attorneys practicing administrative law. But it’s a hugely important case about the balance of power between relatively accountable federal agencies and a completely unaccountable judiciary. Kisor is also likely to be the first in a wave of decisions consolidating power within the judiciary now that the Supreme Court is controlled by hardline conservatives.
Numerous federal laws announce a broad policy, then empower a federal agency to fill in the details of that policy through “regulations.” The Clean Air Act, for example, requires certain power plants to use “the best system of emission reduction” that is both technologically and economically feasible to use, but it leaves the task of determining what the “best system” is at any particular moment to the Environmental Protection Agency. The Affordable Care Act requires plans sold in the Obamacare exchanges to offer coverage “equal to the scope of benefits provided under a typical employer plan,” but leaves the task of determining what the scope of such benefits are to federal agencies. The particular regulations at issue in Kisor lay out procedures that the Department of Veterans Affairs uses to assess whether a particular veteran is entitled to benefits.
Thus, Congress sets federal law. But as technology advances or as employers start behaving differently throughout the nation, federal agencies can adapt their regulations to ensure that the broad policy announced by Congress is still being served.
Kisor asks what should happen when an agency’s regulation is sufficiently ambiguous that it is unclear how it should apply in a particular case. Nearly three-quarters of a century ago, the Supreme Court held that, when a regulation is unclear, the agency’s interpretation of its own regulation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” This holding was more recently reaffirmed in Justice Scalia’s unanimous decision in Auer v. Robbins.
Auer, moreover, is one of a web of decisions holding that, as a general rule, courts should defer to elected officials — or, at least, to federal regulators who are accountable to elected officials — when the answer to a legal question is unclear. The Supreme Court’s decision in Chevron v. Natural Resources Defense Council, for example, requires courts to defer to an agency’s reading of an ambiguous statute when it is unclear whether that law permits the agency to promulgate a particular regulation.
As Justice John Paul Stevens explained in Chevron, this deferential rule serves two purposes. It fosters better rulemaking, because specialized agencies typically know more about the areas of the law that they oversee than generalist judges. And it also fosters democracy. “While agencies are not directly accountable to the people,” Justice Stevens wrote, “the Chief Executive is.” And it is better to vest policy decisions in agency officials who are democratically accountable, albeit indirectly, than to vest those decisions in judges with lifetime appointments.
Where you stand depends on who is in charge
For years, the Supreme Court’s right flank included some of the staunchest defenders of judicial deference to agencies. Justice Scalia didn’t just write the Auer decision, he was a vigorous defender of Chevron. Among other things, Scalia said in a 1989 lecture published in the Duke Law Journal, Chevron promotes “flexibility, and appropriate political participation, in the administrative process.”
“One of the major disadvantages of having the courts resolve ambiguities is that they resolve them for ever and ever,” Scalia warned. But Chevron permits agencies to adapt their regulations as they discover new facts or as the world changes in ways that justify different legal rules.
There was also an important political reason why Republicans would support Chevron when it was handed down in 1984. As Northwestern law professor Jide O. Nzelibe explained to a 2013 gathering of the conservative Federalist Society, when Chervon was decided, America was in a “deregulatory phase.” President Reagan ran on a promise to “break the growth of government,” and Chevron meant that the courts would not say “in the name of the law, don’t deregulate.”
The “flexibility” and “appropriate political participation” that Scalia spoke of in 1989 was the power of conservative Reagan appointees to prevail upon their agencies to cut back on regulation. And those officials craved a deferential judiciary because it meant that they could deregulate without fearing that the courts would stop them.
By 2013, however, voices like Nzelibe’s — or Scalia’s, for that matter — were on the wane within the Federalist Society. Reagan was no longer president, President Obama was. The courts were far more conservative. And, thanks to gerrymandering, Republicans controlled the House of Representatives — despite the fact that Democratic candidates for the House received more votes than their Republican counterparts in 2012.
Obama, in other words, could not pursue a legislative agenda. But he could still rely on federal agencies’ existing power to regulate in order to set policy. Cases like Chevron and Auer were now boons to liberalism just as much as they’d been boons to conservatism under Reagan.
And so the Federalist Society spent much of Obama’s second term promoting ambitious — and often outlandish — proposals to shrink agency power. Chevron and Auer became villains in the eyes of conservative lawyers. And they remain villains even after a Republican accidentally won the presidency in 2016.
Presidents come and go. A Democrat could very well control the executive branch in 2021. But gerrymandering and Senate malapportionment still make it very difficult for Democrats to gain control of Congress. And the Supreme Court is close to being a wholly owned subsidiary of the Federalist Society. Why wouldn’t Republicans want to transfer power from the executive to the judiciary at this moment in time?
Triumph of the stupid
By 2016, conservative legal elites widely embraced the case against Chevron and Auer. But these elites still faced a serious problem if they hoped to secure five votes on the Supreme Court to roll back these decisions. While conservative judges, lawyers, and legal academics had every reason to support a wholesale transfer of power from the president to the judiciary, presidents typically aren’t so keen on giving up their own power. And the president gets to decide who is nominated to sit on the Supreme Court.
Which is why Trump’s triumphant second-place finish in 2016 was such a coup for the Federalist Society. Donald Trump is a man who spends his mornings livetweeting Fox News. He routinely makes public statements that undermine the positions his administration took in federal courts. He sparks international incidents by tweeting about how his, um, button, is bigger than Kim Jong Un’s.
North Korean Leader Kim Jong Un just stated that the “Nuclear Button is on his desk at all times.” Will someone from his depleted and food starved regime please inform him that I too have a Nuclear Button, but it is a much bigger & more powerful one than his, and my Button works!
— Donald J. Trump (@realDonaldTrump) January 3, 2018
Donald Trump is, to put it bluntly, too stupid to understand the nuances of federal administrative law, and he shows no interest in learning about such topics, regardless.
Trump is thus the perfect vessel for a conservative legal movement that wants to centralize power in the one unelected branch of government. A different Republican president might have balked at an agenda that would have diminished the presidency as an institution. But Trump is too busy watching Fox and Friends to think about such things, so he largely delegated the judicial selection process to the Federalist Society — just as he promised on the campaign trail.
As a lower court judge, Trump’s first Supreme Court nominee, Neil Gorsuch, wrote an opinion claiming that Chevron permits “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” This opinion, according to David Kaplan’s book The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution, “proved decisive in cinching” the Trump White House’s decision to choose Gorsuch.
Similarly, as a lower court judge, Brett Kavanaugh was known for his skeptical views of agency power generally — and especially for his decisions undercutting President Obama’s EPA. He’s all but certain to join the fight to transfer agencies’ power to the courts.
Gorsuch and Kavanaugh, moreover, will almost certainly have three allies in this fight. As Justice Clarence Thomas noted in a 2016 opinion, he, Chief Justice John Roberts and Justice Samuel Alito have all suggested that Auer should be reconsidered. Roberts already carved a big chunk of Chevron away in his 2015 opinion in King v. Burwell. The outcome in Kisor — and in future cases seeking to transfer power from federal agencies to the judiciary — is hardly a cliffhanger.
The death of humility
When the Supreme Court almost certainly overrules Auer in its Kisor opinion, it’s unlikely to be upfront about the shifting political winds that brought it to that decision. As Alex Pareene writes, “coming up with a principles-based reason for a decision that will have a politically or materially beneficial outcome for you or your side is a cornerstone of conservative legal theory.” The whole point of interpretive methods like Scalian originalism is that they allow judges to pass off conservative, results-driven decisions as rooted in neutral legal principles.
And so, true to form, Scalia devised a seemingly principled reason to reject his own opinion in Auer. “When an agency interprets its own rules,” Scalia wrote in a 2013 concurring opinion, “the incentive is to speak vaguely and broadly, so as to retain a ‘flexibility’ that will enable ‘clarification’ with retroactive effect.”
Auer, Scalia claimed, encourages agencies to intentionally write ambiguous regulations so that they can maximize their own ability to reinterpret those rules in the future.
It’s the sort of amateur psychology that makes sense if you think about it for five minutes, but that makes no sense at all if you have any understanding of how partisan politics works. Why would the Obama administration intentionally write a vague rule that could be interpreted to do little or nothing by the Trump administration? Why, for that matter, would the Trump administration write a vague rule that could enable a future Democratic administration to read it liberally? Agency leaders have every incentive to write regulations as clearly and as precisely as possible, because they don’t want their work to be sabotaged by future officials (or future judges, for that matter) who are hostile to the regulation’s goals.
Moreover, as Daniel Walters writes in the Columbia Law Review, there’s no empirical evidence that agency leaders behave in the way Scalia suggests. To the contrary, Walters’ own research cuts in the opposite direction.
I report findings from my application of computational linguistics methods to track the degree of vagueness to agency rules after exposure to Auer. I approach the measurement question carefully, using a variety of validated text based measures. For instance, one such measure comprises an index of paradigmatically vague legal terms, such as reasonable, appropriate, and prudent.
Applying the multiple measures to over 1,200 economically significant rules from 1982 to 2016, I find that agencies wrote no more vaguely after Auer was decided in 1997. I likewise find no evidence that agencies’ win rates under Auer or their exposure to Auer-related litigation in federal court had any impact on the clarity and specificity of their rules. In fact, if anything, the evidence suggests that agencies on the whole have been writing with greater clarity since Auer’s profile has grown.
The genius of decisions like Chevron and Auer is that they recognize the limits of federal judges. Judges are not historians, linguists, or psychologists. They don’t even have specialized knowledge in every area of the law. They are unelected officials who are often tasked with solving legal questions where there are no clear answers.
In these most difficult cases, Chevron and Auer instruct judges to behave with humility — to defer to individuals who, by virtue of their superior knowledge or their democratic accountability, are better suited to shape policy than the judges themselves.
But humility is no longer fashionable on the Supreme Court, and it is certainly out of fashion within the Federalist Society. Decisions like Chevron and Auer prevent a conservative oligarchy from consolidating power in the one branch of government the voters cannot rebuke. And, for that reason, neither decision is likely to survive very much longer.