The Supreme Court Just Killed the Chevron Deference. Time to Buy Bottled Water.

So long, forty years of administrative law, and thanks for all the nontoxic fish.By Charles P. PiercePublished: Jun 28, 2024 4:34 PM EDT

Remember, folks. It’s always darkest before things go completely black.

Hard after Thursday night’s television debacle, the Supreme Court leaped in to destroy the separation of powers and, as Elie Mystal pointed out on Xwitter, to engage in the biggest power grab since Marbury v. Madison. Through the now-customary 6–3 vote delivered by the carefully manufactured conservative majority, the precedent of Chevron v. Natural Resources Defense Council, aka the Chevron deference, is now as dead as Julius Caesar. And thus forty years of administrative law comes to a rude and abrupt end. The decision further illustrates that the dedication of the carefully manufactured conservative majority to corporate oligarchy is utterly unshakable, expertise—scientific and otherwise—be damned. Don’t believe me? Ask Chief Justice John Roberts, who wrote the majority opinion.

“Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

So instead of career scientists deciding that the E. coli convention in your pork loin makes it inadvisable to eat, some twenty-two-year old law clerk fresh out of Regent University School of Law will. Bon appétit!

Getting rid of Chevron was one of the golden dreams of the country’s oligarchs and the judges and lawyers in their pay. Along with Roe v. Wade, it was number one on the conservative hit parade. But Justice Neil Gorsuch, whose concurrence is chock-full of the kind of tin horn erudition so beloved by the carefully manufactured conservative majority, has perhaps a special reason to dance on Chevron’s grave. His mother, Anne Gorsuch, was hired by the Reagan administration to run the EPA—into the ground, apparently. From The Washington Post:

Anne Gorsuch—like Reagan then and President Trump today—was a firm believer that the federal government was too big, too powerful and too eager to issue regulations that restricted businesses. As a result, she slashed the EPA’s budget by nearly a quarter and, according to a Washington Post story at the time, boasted that she had reduced the thickness of the book of clean water regulations from six inches to a half inch. She filled various departments at EPA with subordinates recruited from the very industries the agency was supposed to be regulating.

By the end of her stint at EPA, Anne Gorsuch was under siege. A half dozen congressional committees were looking into allegations of mismanagement of the Superfund program, which was designed to clean up abandoned toxic waste sites around the country. The House voted to cite Gorsuch for contempt of Congress for failing to turn over subpoenaed records.

In addition to its dollar-store history, Gorsuch’s concurrence pretty much turns the concept of stare decisis into Silly Putty. Return with us now to those thrilling days of the seventeenth and eighteenth centuries, Justice Neil Gorsuch, your host.

Other consequences followed for the role precedent played in future judicial proceedings. Because past decisions represented something “less than a Law,” they did not bind future judges.... At the same time, as Matthew Hale put it, a future judge could give a past decision “Weight” as “evidence” of the law.... Expressing the same idea, William Blackstone conceived of judicial precedents as “evidence” of “the common law.” And much like other forms of evidence, precedents at common law were thought to vary in the weight due them.

Matthew Hale died in 1676. He was a notorious witch hunter and once argued that the existence of laws against witchcraft proved that witches existed. What the hell he has to do with PFAS pollution or workplace safety in a chicken plant is beyond me. But we live in his universe now, and Neil Gorsuch got his own back for his mom.