There is no conservative legal movement


On the last day of the Supreme Court’s term, in a case called West Virginia v. Environmental Protection Agency, the Court said the Clean Air Act did not clearly authorize the EPA to create a Clean Power Plan – in other words, to set standards for emissions from existing power plants to encourage the “displacement of generation” of electricity production towards sources that emit less carbon dioxide. If that doesn’t sound like the stuff of big events, it was made so by the court’s approach to the case. Chief Justice John G. Roberts Jr., writing for the majority, expressly announced, for the first time, that the court would apply a “major issues doctrine.” According to the majority, the doctrine holds that in “extraordinary cases” the court will apply a “different approach” to ordinary legal principles governing the interpretation of statutes. Instead, he will demand clear congressional authorization for agency action that the justices say is “highly consequential,” raising questions of “economic and political significance.”

Commentators rushed to discuss the importance of West Virginia vs. EPA for the conservative legal movement, which they assumed the majority justices belonged to, perhaps because the court limited abortion rights and strengthened gun rights in the same term. But this framing rests on a fallacy: in reality, as this case makes clear, there is no such thing as a conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a set of outcomes. West Virginia vs. EPA illustrates that even the last methodological postulate professed by the movement will be minimized, nuanced or abandoned when the opportunity arises to limit the regulatory authority of federal agencies, particularly in environmental matters.

The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods of interpreting legal texts. Conservative jurisprudence – again, as advertised – rests on four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and praised in the opinions of conservative judges.

So it’s terribly hilarious that the court’s opinion in WeSt. Virginia v. EPA follows nothing of these methods. This is not an “originalist” opinion. Originalism claims to base the interpretation of legal texts on the original public meaning as understood by the founding generation, for constitutional provisions, or on the original public meaning of enacted laws. As Justice Neil M. Gorsuch recently wrote in Bostock v. County of Clayton, which recognized sexual orientation and gender identity as protected categories under federal civil rights law, “this Court normally interprets a statute in accordance with the ordinary public meaning of its terms at the time of its enactment.” In West Virginia vs. EPA, however, neither the Majority nor the Gorsuch Agreement shows any concern for the original context or public understanding of the Clean Air Act provisions enacted in 1970 – perhaps because, as the court said soon after in 1976, these provisions were widely seen as creating a “drastic remedy”. In West Virginia vs. EPAthe original understanding of the relevant provisions is absent without permission.

John Roberts’ self-defeating attempt to make the court appear unpolitical

The court briefly, and Gorsuch painstakingly, attempted to base the major issues doctrine on the separation of powers and the “doctrine of non-delegation,” a putative constitutional principle that Congress cannot grant regulatory power to the executive in excessively broad or discretionary terms. According to this view, the major issues doctrine is used to interpret statutes narrowly to avoid a potential issue of constitutionally invalid delegation. Requiring clear congressional authorization for significant agency action, the argument goes, represents an attempt to implement the separation of powers at the level of statutory interpretation rather than constitutional law.

The problem, from an originalist point of view, is that there is no constitutional question to avoid; originalist references to the doctrine of non-delegation are surprisingly thin. Extensive research has confirmed the thesis that the doctrine of non-delegation was essentially non-existent during the founding era, when the first Congress made broad delegations to the executive in a variety of areas, including the military service, territorial government and relations with Indian tribes.

The doctrine is essentially a creation of the Supreme Court in the late 19th century, and even then it did not control the outcome of cases; the court has applied the doctrine only twice in its entire history as a matter of constitutional law, striking down central elements of the New Deal National Industrial Revival Act in 1935 – some 150 years after the structural provisions of the the Constitution. Although the Gorsuch Agreement attempts to blur the nondelegation doctrine’s hopeless lack of original references with a long series of citations from academic works, these arguments mostly eschew historical detail in favor of abstract constitutional theory, and ultimately the facts of the founding era are what they are: In the vast landscape of contemporary documents, total mentions of something like a principle of non-delegation would take less space than an editorial. Non-delegation is an invented tradition.

Nor is the ruling textualistic, as Judge Elena Kagan observed in a landslide dissent. Textualism says that the plain meaning of the legislative text is the law, but the majority legislative analysis is superficial and Gorsuch’s fundamentally non-existent. The court succinctly asserts that the major issues doctrine reflects the ordinary understanding of Congress in situations where agency action has “economic and political significance.” (What agency action doesn’t?) But the court itself is also keen to say that the doctrine advises against “a reading of a law that in more ‘ordinary’ circumstances would be upheld.” The only cases in which the doctrine can make a difference arise when the courts find that a “highly consequential” issue warrants an extraordinary departure from the ordinary meaning of the law.

The decision is hardly traditionalist. The main precedent on the major issues doctrine, according to majority and dissent, held that Congress had not clearly authorized the Food and Drug Administration to regulate nicotine as a drug – a precedent that was only decided ‘ in 2000. This is not a venerable maxim or principle of our law; one will seek it in vain in the pages of Blackstone. From a historical perspective, this is a recent innovation by judges who believe, perhaps with the utmost sincerity, that Congress has too cavalierly and too generously allowed administrative agencies to regulate American corporations in the name of health care. , safety, a clean environment and public welfare. in general.

To finish, West Virginia vs. EPA is not “retained” in any possible sense. Procedurally, the court decided a case in which, remarkably, no agency rules existed. The Clean Power Plan had been repealed by the Trump administration, and the Biden administration had asked the lower courts not to put it back in place. Nonetheless, the judges felt there was sufficient threat that the EPA might try to create such a rule in the future. More such restraint, and the court will eventually dispense with actual cases and controversies altogether in favor of ruling on abstract hypotheses.

On the merits, the court insists, again and again, on the fact that the doctrine applies when the cases are “extraordinary”. But this is not just admitting, but proudly proclaiming that it is a doctrine not governed by ordinary legal principles. Some legal doctrines are unpredictable in their application; here, unpredictability is built into the essence of the doctrine itself. Who knows when the court, or for that matter one of the nation’s 700 district judges, will rule on an “extraordinary” case and shut down a nationwide federal regulatory program? Moreover, despite insisting that the major question cases are extraordinary, the court inconsistently went on to describe them as coming from “every corner of the administrative state” – a clear signal that the court expects its anti-regulatory approach to be consistently invoked in the future. . The extraordinary has become ordinary. The doctrine displays the same vagueness of standards that the court finds objectionable, under the rubric of non-delegation, when authority is granted to agencies. What is constitutional overreach for unelected bureaucrats in agencies is a constitutional virtue for unelected bureaucrats on the bench. Be that as it may, judicial coercion is not one.

Judged by one of the methodological precepts professed by the conservative legal movement, West Virginia vs. EPA is condemned. How is it possible? If there is no legal conservative movement, what is? The answer is not mysterious: there is a libertarian legal movement, an abiding opponent of federal regulation, supported and streamlined by a well-established network of richly funded quasi-academic and advocacy institutions – in essence, a resurrection of the 1930s Liberty League. As the Post’s Ruth Marcus recounts in her book ‘Supreme Ambition,’ the goal of the move was made clear by former White House attorney Donald McGahn, who played a key role in the appointments of Justices Gorsuch and Kavanaugh. “As McGahn…told the Federalist Society, “The greatest threat to the rule of law in our modern society is the ever-expanding regulatory state, and the most effective bulwark against this threat is a power strong judiciary.”… The emphasis on social conservatism and its -button problems ended in [former Justice Antonin] Scalia, McGahn said at the first post-election meeting to discuss the judge’s successor. Now it was regulatory relief. On that point, McGahn said, Scalia “wouldn’t make the cut.” “The methods associated with Scalia – originalism, textualism, traditionalism and judicial restraint – were apparently also left on the floor of the editing room.


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