Supreme Court justices sometimes act like oracles, using their opinions to prophesy things to come. Like all oracles, the truths can be difficult to divine, but the revelations always matter. Only occasionally is such a prophecy as piercing as it was in Justices Neil Gorsuch, Samuel Alito and Clarence Thomas’s concurring opinion in last week’s vaccine mandate decision.
Coldly ignoring the ongoing devastation of the COVID pandemic, that decision struck down the Biden administration’s rule requiring businesses employing 100 people or more to act to stop the spread of the virus.
The court’s three most conservative, activist members have long had a bee in their bonnet about the so-called “administrative state,” and each has a long record of hostility to health and safety regulations. So the substance of their position was hardly surprising.
Still, their opinion signaled that they would let neither law nor logic stand between them and pushing forward their agenda. As CNN commentator Joan Bisupkic put it, they wrote much more “expansively … about the limits of agency power” than was necessary to decide the case.
While progressives have rightly been devoting energy to preserving democratic institutions, the conservative phalanx on the bench is mounting a frontal assault on the federal government’s ability to promote the health, safety and welfare of citizens.
Not only is our democracy in peril, but so is the entire philosophy and apparatus of the New Deal welfare state. Because this philosophy of public welfare as a shared national value has demonstrated remarkable political staying power, the conservative activists on the court are seeking every opportunity to try to take it down.
Gorsuch, Alito and Thomas’s expressed hostility to what Steve Bannon has derisively referred to as “the deep state,” and their embrace of Bannon’s crusade to “deconstruct the administrative state” was so apparent in last week’s decision that it’s almost as if Bannon himself had joined the court.
Their opinion foretells what law professor Kimberly Wehle says could be a “cascade of deregulation” enforced by the court.
Gorsuch, Alito and Thomas cloak their desire to fuel this process in a rhetoric of popular sovereignty. They claim to protect the right of the people to set policy through their elected representatives — but these Justices’ views would undermine those representatives’ ability to legislate in all but the most mechanical and formalistic ways.
That these same justices seem to have no qualms about a president’s use of executive orders to bypass Congress, about gutting the 1965 Voting Rights Act, and condoning partisan gerrymandering speaks volumes about their illusory commitment to popular sovereignty and democracy.
Evoking the title of a legendary book by political scientist Robert Dahl, “Who Governs?,” Gorsuch, Alito and Thomas wasted no time identifying what they insisted was at stake in the vaccine mandate case: “The central question we face today is: Who decides?”
According to them, while “no one doubts that the COVID–19 pandemic has posed challenges for every American … The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether … that work belongs … to the people’s elected representatives in Congress.”
That Congress had already spoken when it created the Occupational Safety and Health Administration hardly seemed to matter to the Supreme Court’s Bannon acolytes. Gorsuch, Alito and Thomas insist that Congress must “‘speak clearly’ if it wishes to assign to an executive agency decisions ‘of vast economic and political significance.’”
Here they relied on another astoundingly cruel Supreme Court decision: the August, 2021, ruling that invalidated a pandemic-inspired eviction moratorium promulgated by the Centers for Disease Control. The justices quote themselves because there is no constitutional basis for their willful creation of roadblocks to stop government agencies from protecting the health and well-being of Americans.
Their misconstrual of how government can effectively work does not stop there. Their judicial command that Congress speak clearly would be laughable if it were not so pernicious.
Today hyper-partisanship, Republican obstructionism, and the Senate’s role as a tool of minority rule all mean that Congress is barely able to speak at all. While the 93rd Congress passed 772 bills into law from Jan. 3, 1973 to Dec. 20, 1974, the 116th Congress passed only 344 bills from Jan. 3, 2019 to Jan. 3, 2021. And the current Congress is enacting legislation at an even slower pace.
Any first-year law student knows that legislatures rely on general, sometimes unclear language and delegate authority to administrative agencies for a reason. Because they cannot anticipate future events, they provide agencies the discretion necessary so they can deal with them as they occur.
In fact, a recent study estimates that 99 percent of major congressional legislation involves some delegation of authority. To end or severely limit delegation is to end or severely limit legislation itself.
Gorsuch, Alito and Thomas’s desire to end delegation except for so called “minor” questions would unwind decades of growth in the federal government’s role in American life. It would take this nation back to a time when it had much less on its plate and when the social compact left large segments of the public to the vagaries of the market.
Until recently, as Wehle notes, “Congress has routinely given agencies the authority to make laws … and the Supreme Court has consistently refused to interfere.” In that period, the court accorded deference to administrative rule making and regulation.
That deference was a key part of an alliance of experts. Justices and regulators were mostly on the same team, recognizing that technical competence is essential in complex, modern democratic societies
But in Gorsuch, Alito and Thomas’s hands that alliance is dissolving. They reject rational administrative policymaking and scientific principles applied to regulatory decisions.
In the vaccine mandate case, they claimed to be acting only to “ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands” and to prevent “intrusions into the private lives and freedoms of Americans by bare edict rather than … the consent of their elected representatives.”
Beneath that rhetoric is barely concealed hostility to the federal government’s efforts to promote a more inclusive, egalitarian, and just society.
For anyone who listens to Bannon’s podcasts — his faux valorization of popular sovereignty and trashing of expertise — the justices’ rhetoric should sound very familiar. As Mother Jones reporter Stephanie Mencimer rightly observed, the ascendency of the Gorsuch, Alito, Thomas agenda means that throughout the federal government “much of the process of issuing and enforcing regulations could grind to a halt — an outcome that would surely please Steve Bannon.”
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” Follow him on Twitter @ljstprof.