Justice Kagan Issues Blistering Dissent On Conservative Supreme Court 'Hubris'
U.S. Supreme Court Justice Elena Kagan accused her conservative colleagues of forgetting the court’s elementary role within the nation’s three branches of government, writing in a landmark Supreme Court decision on Friday that “the majority disdains restraint, and grasps for power.”
Her scathing remarks were part of a dissent she wrote as the court’s conservative supermajority overturned 40-year court precedent in 1984′s Chevron v. Natural Resources Defense Council.
The Chevron case had established that courts should generally, although not always, defer to the expertise of federal agencies tasked by Congress to regulate aspects of commerce in American life; for example, food safety and water quality. In Chevron, the justices acknowledged the expertise of the agencies, which are staffed largely with career officials.
But on Friday, in a case brought by two fishing companies — Loper Bright Enterprises and Relentless — the court abolished the Chevron precedent and handed a major win to corporations.
“A rule of judicial humility gives way to a rule of judicial hubris,” Kagan wrote in her 29-page dissent. Justices Sonia Sotomayor and Ketanji Brown Jackson joined her.
Writing for the majority was Chief Justice John Roberts, joined by all five of the court’s other conservatives — who now, in Kagan’s words, have “the power to make all manner of scientific and technical judgments.”
Kagan at one point highlighted the uncertainties that had been wrought by the majority’s decision.
“It puts courts at the apex of the administrative process as to every conceivable subject — because there are always gaps and ambiguities in regulatory statutes, and often of great import,” she said.
“What actions can be taken to address climate change or other environmental challenges? What will the Nation’s health-care system look like in the coming decades? Or the financial or transportation systems? What rules are going to constrain the development of A.I.?” Kagan asked.
“In every sphere of current or future federal regulation, expect courts from now on to play a commanding role ... It is a role this Court has now claimed for itself, as well as for other judges,” she said.
The high court had the option, she said, of intervening in federal agencies’ policy decisions on a case-by-case basis, as it had been doing previously.
“But evidently that was, for this Court, all too piecemeal,” she lamented. “In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden — involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar.”
In reprimanding the majority for discarding longstanding precedent, Kagan also wrote that the court has done so only all too frequently in recent years, saying it was “impossible to pretend that today’s decision is a one-off, in either its treatment of agencies or its treatment of precedent.”
“[J]ust my own defenses of stare decisis — my own dissents to this Court’s reversals of settled law — by now fill a small volume,” Kagan said.
“Once again, with respect, I dissent.”
