This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
Last week, the conservative majority used its decision in Loper Bright Enterprises v. Raimondo to overturn a long-settled and important precedent, the 40-year-old decision in Chevron v. Natural Resources Defense Council. That case had established what is called Chevron deference, a doctrine requiring that judges defer to the reasonable judgment of executive branch officials when reviewing executive branch regulations.
As law professor Kate Shaw explains it, “Chevron deference allowed agencies to use their expertise to determine how to carry out laws passed by Congress—laws intended to keep our air and water clean, our drugs safe and effective and our securities markets protected from fraud and deception.”
As bad as that decision is on the merits, a look at what Chief Justice John Roberts said about Chevron places in stark relief the current court’s ruthlessness and its arrogant disregard for the traditions of the rule of law itself.
Content not just to overturn precedent, Roberts and his ultraconservative fellow travelers seem eager to display a self-confident superiority and disrespect for justices who served previously and tried to faithfully interpret the law.
Their willingness to trash their predecessors is disturbing and dangerous. While flexing its muscle, the court’s current conservative majority is acting in ways that undermine public confidence in the court itself.
Before looking at what Roberts said in overturning the Chevron decision, let’s look at how the court has traditionally handled the delicate task of upending precedent and explaining its reasons for doing so.
The first thing to note is that from 1810—the first time the court overturned a precedent—to 2022, the Supreme Court has overturned precedent 235 times. But from 1810 to 1940, the court overruled precedent in only 48 cases.
In fact, it was not until 1871 that the Supreme Court used the word overrule or overturn in one of its decisions.
But research my collaborators and I recently completed shows that there has been a marked increase in the incidence in which precedent has been overruled in the past half-century.
From 1940 to 1963, the court overruled 43 cases. From 1963 to 2003, which includes the high point of the liberal Warren court, the court overruled precedent in 121 cases.
In the past two decades, including what it did last week, the court has overruled a total of 23 cases, or 1.16 cases a year. Its most infamous overruling decision came in 2022, when the court overruled Roe v. Wade and discarded a 50-year-old precedent.
In addition, our research shows that today the opinions of the court are much more openly critical of the decisions they overrule than were those that overturned precedent throughout most of American history. This has been particularly true when the overruling opinions are written by the court’s most conservative members.
In the past, the court said relatively little about the cases it overruled. When justices did write about them, they were often almost apologetic. They seldom said anything that would impugn the motives or competence of the justices or the courts whose decisions they overturned.
Words and phrases that were most commonly used to characterize overruled cases in this period include inconsistent or unsound, as in “We feel constrained to pronounce [the case being overruled] essentially unsound”; untenable, as in “We are compelled to declare [the overruled case] untenable”; not harmonious, as in “[The overruled] cases are out of harmony with the general current of the decisions of this court”; and erroneous, as in “If we follow [the overruled case], we follow an erroneous decision.”
Overruling courts might have gone so far as to call a prior decision “confusing,” as in “Disturbance and confusion that must inevitably flow from an adherence to [the principles of the overruled case]”; irreconcilable, as in “The judgment in the instant case cannot be reconciled with the decision in [the overruled case]”; or a departure (from principle/precedent), as in “The decision in the [overruled] case was a departure from the true application of the principles [in this area of jurisprudence].”
Of special note is how often the court expressed reluctance to overturn precedent. It presented its overruling decisions as what Andrew Jacobs calls “compelled events.”
In the past, Pintip Dunn writes, justices generally used language that was “nondescript enough to avoid the alarm bells set off when there is a departure from precedent.” The court, he says, sought to speak in ways that “sneak the act of overruling by with minimal damage to its legitimacy.”
But no more. As Jacobs argues, there has been a “fundamental shift in Supreme Court overruling rhetoric.”
When the current court decides to overrule precedent, it is prone to write a “trash-and-burn” decision about the case it is overturning. Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health, the case that overruled Roe, exemplifies this new style.
Explaining why Roe should be consigned to the dustbin of history, Alito wrote: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
But Alito was not done. Adding insult to injury, he argued that “Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.”
He alleged that the justices who had decided Roe v. Wade “usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” Alito claimed that Roe’s analysis of the history of abortion and abortion regulation was “irrelevant” and “plainly incorrect.”
He deemed the legal reasoning contained in Roe’s majority opinion “unprincipled,” claiming that it offered an “unfocused analysis.” He called its treatment of the Constitution “remarkably loose” and “hard to defend.”
He heaped scorn on Roe and criticized what he called “the scheme Roe produced” for looking like “legislation” and providing “the sort of explanation that might be expected from a legislative body.”
That brings us back to Roberts’ Loper Bright opinion. Not surprisingly, it is a bit more temperate than what Alito said in Dobbs.
Nonetheless, the chief justice followed Alito’s style in the extensiveness and bluntness of his criticism of Chevron.
He started by calling the court’s unanimous 1984 decision “misguided.” He bitterly complained that the Chevron court had “gravely erred.” It did so, Roberts wrote, when it concluded
that the [judicial] inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction—the tools courts use every day—is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.
As if that were not enough, Roberts went on to say that the Chevron court departed from “time-honored” jurisprudential principles. He accused the court of getting things “upside down” by presuming that statutory ambiguities are implicit delegations to agencies.
He concluded that the justices who decided Chevron should have known at the time that Chevron deference would be “unworkable.” It has required what Roberts, with dripping sarcasm, called “a dizzying breakdance.”
“Four decades after its inception,” the chief justice wrote, “Chevron has thus become an impediment, rather than an aid, to accomplishing the basic judicial task of ‘say[ing] what the law is.’ ”
In the end, as professor Shaw notes, Roberts’ Loper Bright decision closely resembles Alito’s Dobbs opinion in that “both decisions display outright contempt for the decisions reached by earlier Supreme Courts.”
The result of this arrogant disregard of precedent is to further erode the public’s confidence in the court—that when the court says what the law is, its decisions are worthy of respect. After all, if one group of justices heaps scorn on its predecessors and displays contempt for them and their rulings, why shouldn’t the public follow its lead?