Loper Bright: The Supreme Court’s war against the government is just beginning

Finally, the Court of Justice is Chevron The expert opinion ensured that expertise counted. Members of Congress may not know the nuances of food and drug safety, but regulators at the Food & Drug Administration can. Decisions about whether, for example, an alpha-amino acid polymer is a protein and thus a biological product that can be regulated under the Public Health Service Act are made much better by scientists at the FDA than by the reactionary think tank of Marjorie Taylor Greene and Lauren Boebert.

Chevronin short, helped establish at least the semblance of a functioning government. In overturning it, the Court looked at this chaotic but functioning status quo and decided that unelected, uneducated, and unaccountable judges should have more power, not less. As Justice Elena Kagan writes in her dissent, the result is in Loper Bright “puts courts at the forefront of the administrative process in every conceivable matter.” This is “not a role assigned to them by Congress,” she concludes. “It is a role that this Court has now claimed for itself.”

The effects of Loper Bright are too broad to describe in detail here, but their implications will be particularly relevant in cases where, for example, a federal agency is in Democratic hands and a review court is in Conservative hands. How should “forever chemicals” be regulated? Don’t ask scientists who understand the harmful effects of these chemicals on people and the environment—ask Justice Neil Gorsuch, whose expertise is so great that he recently written an opinion on EPA regulation of “nitrogen oxides,” repeatedly referring to “nitrous oxide,” better known as laughing gas. How should geographic areas be defined for the purposes of Medicare hospital reimbursement? In the past, that would have been a good question for the people who run Medicare; now it may fall to Judge Aileen Cannon. What regulations can the Occupational Safety and Health Administration issue to protect workers who do potentially dangerous work? That’s a fantastic decision, not for regulators who have spent their careers dealing with actual workplace accidents, but for Judge Jim Ho, who believes that doctors have a “aesthetic injury“ when a woman has an abortion.

In a democracy, we should be governed by the people and our elected representatives. The far-right, anti-democratic Supreme Court is committed to ensuring that we live in a country where judges rule instead. The conservative judiciary is arrogating immense power to itself and ensuring that the conservative project continues unabated regardless of the election result.