[rayiner]

No, we believe we should follow what the Constitution says even if it’s convenient. There’s virtually nothing that unites Federalist Society members (many of whom are Biden voters) apart from an engineers’ commitment to technical accuracy over practical effects.

[cthalupa]

Constitutional scholars since the founding of the nation have taken no issue with Congress delegating authority to federal agencies, and the initial Chevron decision followed along those lines.

Why is it only now, with the hyper-politicization of the SC, with interested parties spending significant money providing luxury and lavish accommodations to at least one member of the SC, that this previously accepted interpretation of the constitution is suddenly in question?

[rayiner]

Chevron is about who interprets statutory law, agencies or courts. That question has been controversial for 100 years, ever since we have had administrative agencies. For example, the Supreme Court decided in 1944 that courts should give some respect to agency interpretations, but the court had the final say: https://en.wikipedia.org/wiki/Skidmore_v._Swift_%26_Co. Chevron didn’t create the deference concept until 40 years after that.

Chevron was always contentious, and applied by courts in a rather haphazard way. But overturning it wasn’t “political.” It was originally decided by five republicans and a Democrat (with three justices not participating) and was overturned by six republicans. What happened was an ideological shift in the Republican Party to separation of powers that’s been going on since the 1980s.

Law nerds have been talking about this for decades. The only thing "politicized" is how the media is using public ignorance of how the legal system works to attack the Supreme Court for an extremely academic legal issue.

[throw0101b]

> Chevron was always contentious […]

Chevron was a unanimous 6-0 decision: there was no debate on its principles at the time.

Chevron said that it was not up to the courts to decide policy when there was ambiguity:

> When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."

If there is ambiguity it is either on purpose (to allow flexibility) or by accident (unforeseen or change circumstances): it was thought that it is best for policy makers to deal with that ambiguity.

Remember: the agencies are headed by an Executive that is elected (President), and run my administrators (Secretaries, Directors) that are Senate-confirmed. There is connection to the will of The People throughout their operation.

[JumpCrisscross]

> there was no debate on its principles at the time

The part that made Chevron consequential wasn’t recognised at the time.

[anigbrowl]

I dispute this. It seems to me that if Congress was vague, it knew it was ceding power to the agency to decide; and that the court in Chevron considered it normal that the fallout from poor decisions should land upon those seeking legislative or executive re-election.

I can see both good and bad outcomes from today's decision (though I think in the short term it will multiply litigative and executive brinksmanship without elevating legislative standards), but I really don't agree with the idea that the justices who originally decided it were just clueless about the implications.

[cthalupa]

Citing a prior ruling that contains more precedence around the idea that federal agencies should have the right to interpret and enforce regulations is an interesting way to argue that it's a controversial topic. You cite a link that explicitly talks about deference and then claim that the concept didn't exist until 40 years later.

I'm also unsure how the political makeup of the court 80 years ago has anything to do with whether or not the court is more political now than ever, particularly in reference to something that actually is controversial - a justice and his family receiving significant compensation from politically motivated companies, including those that have a vested interest in decisions that he refuses to recuse himself from.

[rayiner]

> Citing a prior ruling that contains more precedence around the idea that federal agencies should have the right to interpret and enforce regulations is an interesting way to argue that it's a controversial topic.

That's not what Skidmore said. It said that courts should defer to agency interpretations to the degree they are "persuasive." Which is almost a truism--obviously courts can defer to reasoning they find persuasive. Chevron went further, and required courts to defer to agency interpretations if they were "reasonable," even if the court would have interpreted the law differently.

> I'm also unsure how the political makeup of the court 80 years ago has anything to do with whether or not the court is more political now than ever

The Court is less political than ever. In the mid-20th century, the Court was at the peak of politicization, striking down democratically adopted laws based on "emanations from penumbras" of constitutional provisions.

Regarding Thomas, you sound like you're reading from some sort of talking points. Thomas was the OG constitutional purist. The notion that he's developed this views because he want on vacations with his personal friend is absurd.

[cthalupa]

I imagine both of us sound to the other like we're reading from a list of talking points. On your side, I see your replies as twisting things around to try and get to being right through some narrow definition - obviously Chevron further codified things - otherwise we'd just reference Skidmore and be done with it. But that doesn't change the fact that it was codifying existing practices, which is my entire point.

As for Thomas, I do not understand how any rational human being could make excuses for him (or Alito, to a smaller extent.) If you don't think it is a massive conflict of interest to be taking part in rulings related to the interests of Crow when he has received millions of dollars worth of perks, vacations, etc. from him, I don't know that we can have a serious conversation. How can anyone remain impartial when the interests of someone who has lavished them with the equivalent of many millions of dollars in gifts are in the balance? I'm also not stating that Thomas is newly compromised, so I'm not sure that his original positions mean much when I believe he's been compromised from the start. The difference is now that he and his compatriots are firmly in the driver's seat.

[rayiner]

> I imagine both of us sound to the other like we're reading from a list of talking points.

I’m talking about an academic debate around Chevron that’s been around ever since I started law school, and was already robust for a couple of decades before that. This trying to connect it to Thomas’s vacations thing has come out overnight and seems out of a script.

> But that doesn't change the fact that it was codifying existing practices, which is my entire point.

That certainly not what I learned in my administrative law class! Skidmore says judges may defer to the agency if they find the agency’s interpretation persuasive. But the judge always retains the power to decide the meaning of the statute itself. Chevron changes that significantly. The agency interprets the statute, and the court can only disagree if that interpretation is unreasonable. And Chevron allows the meaning of the statute to change with each administration.

> As for Thomas, I do not understand how any rational human being could make excuses for him (or Alito, to a smaller extent.) If you don't think it is a massive conflict of interest to be taking part in rulings related to the interests of Crow when he has received millions of dollars worth of perks, vacations, etc. from him, I don't know that we can have a serious conversation.

You’re misreporting the facts, probably because you’re reading from talking points: https://www.forbes.com/sites/saradorn/2023/04/24/supreme-cou.... There was one 2004 case, involving a portfolio company of Crow’s firm, where Crow was not involved in the management. Critically: “Crow Holdings and Harlan Crow’s name do not appear on the 2004 court filings.” And the Supreme Court rejected the company’s certiorari petition.

The Supreme Court gets thousands of certiorari petitions every year. They identify conflicts based on the people who are named in the filings. (That’s how all judges do it.) The idea that he’s corrupt because he voted against hearing a certiorari petition—to the detriment of the company—in a case where Crowe’s name or his company’s name don’t appear, is ridiculous. It’s a deliberate effort to try and delegitimize the court through mudslinging.

[klyrs]

> The Court is less political than ever.

They're going through precedent like cordwood, that's not apolitical by any stretch of the imagination. Don't mistake your politics for neutrality

[jpmoral]

> But overturning it wasn’t “political.” It was originally decided by five republicans and a Democrat (with three justices not participating) and was overturned by six republicans. What happened was an ideological shift in the Republican Party

Your conclusion doesn't match your argument. The original decision was voted in along party lines, the party ideology changed, and now it's been overturned again along party lines. How is that not political?

[Matticus_Rex]

Erm... I think there will be problems as a result of this, but your comment is wildly bad on a number of levels.

#1 - Chevron deference as a rule comes out of Chevron, and the idea that Chevron just encoded something that was already always done is ahistorical. Both before Chevron and going forward, courts will still often defer to agency interpretation when that makes sense. They just won't be compelled to look at it so uncritically.

#2 - The idea that Chevron has been uncontroversial until now is totally detached from reality, and is a dead giveaway that you really don't know much about this.

[cthalupa]

#1 - Prior to Chevron, did Congress delegate authority to federal agencies to impose regulations? The answer is yes. Prior to Skidmore, did Congress delegate authority to federal agencies to impose regulations? The answer is yes.

The fact that Chevron codified things in a more structured way does not change the fact that it was a ruling about an existing practice. How are you arguing otherwise? Both rulings were about things that were already happening. Neither Skidmore or Chevron resulted in the brand new practice of federal agencies having regulatory power.

#2 - Of course there is always dissent around laws and decisions. Obviously, however, the majority of the past century has had further support for federal agencies having regulatory power. It is only the past half decade where there has been significant pushback. People are sitting here complaining about how for so long the SC increased their deference to Chevron - how would that be the case if it was controversial within the court? Weird that we had more than 70 years of the courts just strengthening their position on this if it was so controversial the whole time, rather than something that has been a significant change over the past half decade.

[diffxx]

How would you feel about someone who says "we believe we should follow what the bible says even if it’s (in)convenient"?

[tastyfreeze]

That is a false equivalency. The Constitution is an explicit definition of what the federal government is and what they are allowed to do. The Bible is a collection of a bunch of ancient stories.

[1123581321]

Your quote reminded me of people with strong character: admitting to a mistake when it might cost them their job, urging a friend to return a stolen item, asking fellow church members to get to know a paralyzed man.

Putting aside personal convenience is fundamental to loving God and neighbor at times.

[radley]

> Putting aside personal convenience is fundamental to loving God and neighbor at times.

No, it's fundamental to character. It's not exclusive to religion. That's just part of the myth.

[1123581321]

I'll just point out that loving God and neighbor is a paraphrase of a specific quote from the Bible. That's why I mentioned it. The quote is "Love the Lord your God with all your heart and with all your soul and with all your mind and with all your strength. The second is this: love your neighbor as yourself. There is no commandment greater than these.”

[hobs]

Where's your following of the other significantly more inconvenient parts?

Mixed fibers, prohibitions against eating pork, tattoos, fully submissive women, uncovered heads, slavery, divorce, etc

Some people actually do attempt to follow some of these things, but there's even contradictory information in the same book!

[1123581321]

I’m not sure what you’re wanting, sorry. The quote that started this reminded me of some principled Christians I’ve admired.

[s1artibartfast]

Being fundamental to character, love of God, and love of your neighbor are not mutually exclusive claims.

Someone could come up with a definition for each that excludes this need, but that is true of character and any subjective definition.

[rayiner]

I think the Catholic church for example should do that. The constitution is like America’s Bible.

[sokoloff]

In the context of a Church controversy where members of the church agree that the Bible is their foundational doctrine? I’d feel exactly the same.

[s1artibartfast]

Seems fine. Not everything in life is convenient. In fact, many of the most important things are hard.

[Auracle]

I mean, I’ve never been able to wrap my head around people who are Christian (or whatever) and pick and choose which of the religions “rules” to follow.

I realize to not do so in general makes society a pretty awful place, but most religions say you’ll go to hell if you don’t.

It’s the Supreme Court’s job to explicitly follow the constitution. In your example I want them to be religious fundamentalists. If that turns out to be an issue we have a body that can change our society’s “bible.”

[quantified]

Jesus never revoked Leviticus. So that'll be a hard sell for most.

[emseetech]

| an engineers’ commitment to technical accuracy over practical effects

This reads like the design of nightmares.

[EricDeb]

Textualism when convenient you mean.

[gamblor956]

"Federalist Society" and "commitment to technical accuracy" are diametrically opposed concepts. You are right about them not caring about the practical effects of their actions.

[TylerE]

The federalist society is far right, and any attempt to suggest otherwise is laughable.

[rayiner]

In your view, "far right" is believing that:

1) Courts should interpret statutes, not executive branch agencies

2) The separation of powers that the founders went to a lot of trouble to implement in the constitution must be respected

3) Judges can't gin up new "rights" from "emanations from penumbras" in the Constitution.

These are not "far right" positions--they are obviously correct. They're the version of government you learned in 8th grade. If they weren't inconvenient for your preferred policy preferences, you would think that too.

[joshuamorton]

This is not a particularly fair representation of the general state of the Federalist society's goals (I don't even think it's a particularly good representation of FedSoc's position on this case, but it certainly isn't a good representation of FedSoc's position on e.g. religious freedom).

> Courts should interpret statutes, not executive branch agencies

This is, of course, impossible. If a statute creates a federal agency, the agency must, definitionally, interpret the statute. The agency cannot simply wait for a court to rule on its legitimacy to exist, much less its ability to take particular actions. This doesn't mean that executive overreach shouldn't be curtailed by the judiciary, but using a standard that good-faith, "reasonable" executive interpretations of a statute are valid is a fine standard.

> Judges can't gin up new "rights" from "emanations from penumbras" in the Constitution.

The 9th amendment (and federalist #84) would have some things to say about this.

> The separation of powers that the founders went to a lot of trouble to implement in the constitution must be respected

This is pretty dubious, there's a clear history and tradition, going back to before the founding, of debate on the level of federation and separation of powers, and the shape of the branches' and federal vs. state powers wasn't clearly established until at least 50+ years after the founding (Marbury v. Madison and to an extent Worcester v. Georgia).

[klyrs]

> > Judges can't gin up new "rights" from "emanations from penumbras" in the Constitution.

> The 9th amendment (and federalist #84) would have some things to say about this.

Funny how the 9th amendment was meant to be a bulwark against textualism, isn't it? Much like the "well-regulated militia," this original text of the constitution is ignored in favor of latter-day ideology.

[Matticus_Rex]

The idea that FedSoc is even particularly coherent in its members views is blowing my mind. I dislike plenty of recent actions by the org, but FedSoc has always been a very broad organization -- not even a "coalition" on much of anything. When I was in law school you could find people representing 2/3 of the entire political compass in its speaker directory. Maybe that's shifted a bit since Trump, but without digging I can even think of a handful of FedSoc-aligned people opposed to overturning Chevron.

[TylerE]

They have swung full Trumpist. There is no room for both siderism here. They are against the peaceful transfer of power.

[Matticus_Rex]

Yeah, "full Trumpist," like the FedSoc members behind trying to get Trump removed from the ballot?

[beefok]

> There’s virtually nothing that unites Federalist Society members (many of whom are Biden voters) apart from an engineers’ commitment to technical accuracy over practical effects.

In what fantasy universe do Federalist Society members vote for Biden? They have been backing conservative and libertarians for generations. Their members are part of the Supreme Court and clearly do not want a democracy anymore. They are the antithesis of liberal political positions. I call utter bullshit.

How do their views even remotely line up with Biden voters?

[rayiner]

There’s tons of Biden voters in federalist society because it’s not like Trump is much of a rule follower. And Biden himself for most of his career was a conservative Democrat.

But I’m flummoxed by something. What does “democracy” mean to liberals? You’re the ones who want courts to decide issues that most other advanced democracies leave to voters, right? You believe in unelected bureaucrats and experts governing the country instead of elected officials. You seem to be using “democracy” in a very odd way to refer to rule by educated elites.

[relaxing]

We elect the executive to set the policy for and run the executive branch.

An EPA employee doesn’t “rule” any more than a congressional staffer or court clerk.

[Karrot_Kream]

The Senate allocates equal representation per state regardless of population size. Our elections actually just vote electors who then vote in an electoral college to vote the Executive.

The US system isn't a pure democracy, it's never been. Given that, it's a largely political matter which institutions you feel should be more democratic than others. Article III comes after Articles I and II and many believe this is the order of importance that branches are given in government. Really where we differ is our politics, this is not a debate on obvious constitutional interpretation.

[mcmcmc]

And of course a Congress bought and paid for by lobbyists will actually represent voters, right? The US is a broken country in decline and actively working towards its own destruction

[throw0101b]

> There’s tons of Biden voters in federalist society because it’s not like Trump is much of a rule follower.

This assumes that the Federalist Society cares about rule followers. It is after all the folks that gave Trump the short list of names with Gorsuch and Kavanaugh, after McConnell refused to give Garland even a hearing.

What was the position of the Federalist Society on Garland's situation? Especially since Barrett was appointed just before an election.

What is your position as to why Garland was not even given the time of day but Barrett was?

[intended]

What makes you think the federalist society isnt organized by educated elites?

[gnicholas]

> many of whom are Biden voters

I doubt there are many left after last night.

EDIT: I anticipated some downvoting, but honestly how many FedSoc members are planning to vote for Trump? I can't think of any (and I'm a lawyer, so know more than a few).

[tstrimple]

Yeah, you’d have to be pretty ignorant to think that the president who had admitted the most federalist society members to the Supreme Court won’t be getting any votes from members of the organization that he so empowered. Like beyond the pale levels of ignorance.

[gnicholas]

Whoops, in my edit I obv meant "Biden" not "Trump".