The Regulatory System Is an Important Part of Our Democracy. The ‘Trump’ Supreme Court Could Change That.

This is the first part of a two-post set. The second post is available here.

Last week, Matthew Yglesias published an important piece at Vox explaining the many ways conservatives have succeeded in exploiting fundamentally undemocratic features of our constitutional structure of government to advance their policy agenda. This strategy will have reached its grotesque culmination if they manage to seat Judge Amy Coney Barrett on the U.S. Supreme Court.

He’s rightfully angry about the situation – as should we all be – but the story he tells, thorough and infuriating as it is, misses an important point: It could actually get much worse. That’s because it's likely that Barrett will be a reliable vote in support of advancing the conservatives’ dream of stripping the U.S. regulatory system of its essential democratic features, transforming it into yet another vacuum cleaner with which the nation’s political and economic elites can suck up ever more wealth and power for themselves and away from the rest of us.

As Yglesias observes, the constitutionally prescribed methods for electing members of both chambers of Congress and the president allow for minority control. Indeed, this so-called “counter-majoritarian” design was intended as a feature of the system, rather than a bug. The beneficiaries of this design are voters who reside in the most rural areas of the United States. And as it happens, the divisions between urban and rural America have come to align with our nation’s broader partisan divide, giving conservatives a systemic electoral advantage. The upshot is that conservatives have secured control of the major levers of government, while promoting a policy agenda that is deeply unpopular with the vast majority of American voters.

The fight over Ginsburg’s seat, as Yglesias explains, illustrates how these anti-democratic features of our system magnify and cascade over time. Conservatives enjoy a majority in the Senate thanks to the dominance of low-population states, which enabled them to initially block President Barack Obama’s nomination of Judge Merrick Garland to replace the late Justice Antonin Scalia. When Donald Trump trailed his opponent by nearly 3 million votes but was elected thanks to the Constitution’s Electoral College system, which also favors low-population states, he and his allies in the Senate promptly capitalized, stealing the Scalia seat and installing Justice Neil Gorsuch. Thus they maintained the conservatives’ slender 5-4 advantage on the Court. Now the same anti-majoritarian Senate is going to work with the same anti-democratic president to replace Justice Ginsburg with Judge Barrett, effectively giving conservatives a decisive 6-3 majority on our nation’s highest court for years, if not decades, to come.

But the anti-democratic runaway train doesn’t stop there. In addition to her hostility to abortion rights and the Affordable Care Act, another danger of Barrett's ascension is that she will likely supercharge the Court’s pro-business march that has proceeded under the leadership of Chief Justice Roberts with a renewed vigor for remaking the regulatory system into an instrument of corporate interests. This campaign has been pursued in earnest the last few sessions but, in the most notable cases, fell one vote short of achieving the conservatives’ desired outcome. Barrett stands to provide that missing vote if she is confirmed as expected.

With Barrett seated, a fully Trumpified Court could undermine the essential democratic character of the regulatory system by short-circuiting several critical public participation and accountability mechanisms. I'll describe one such mechanism in this post and cover more examples in a follow-up post tomorrow.

Chevron deference. According to this decades-old doctrine, reviewing courts are supposed to defer to an agency’s reasonable interpretation of its own statutory authority, but only if they have first determined that the statutory language in question is susceptible to more than one interpretation. This approach reflects the judiciary’s respect for Congress and its choice to commit the resolution of such difficult questions to the agencies that wield relevant policy expertise (rather than non-expert judges), and is thus critical to maintaining the regulatory system’s democratic foundation.

Clinging to the (incorrect) belief that Chevron deference has contributed to the “expansion” of the regulatory system, conservatives have sought for years to torpedo this doctrine so judges would be empowered to substitute their own views on regulatory policy for those of the rulemaking agencies. They have yet to succeed in placing the question squarely before the Supreme Court, though they have managed to significantly weaken it indirectly in the context of other cases (e.g., the “major questions” doctrine enunciated as part of the Court’s decision in King v. Burwell, which challenged certain tax-based subsidies created by the Affordable Care Act). With Barrett on the Court, conservatives will no doubt like their chances of finding enough votes to formally overturn Chevron deference and will be working to advance vehicles up the appeals court ladder to accomplish just that. In contrast, the related doctrine of Auer deference (which involves deference to agency interpretations of their own ambiguous regulations) appears to be safe for now, after Roberts surprisingly joined the Court’s liberals to uphold it in the 2019 case Kisor v. Wilkie.

In my second post, I'll explore a few more ways that a 6-3 conservative Supreme Court majority could undermine the essential democratic character of the regulatory system.