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It Will Get Worse Before It Gets Better


Linda Greenhouse’s typically excellent year-end summary of the year in John Roberts concludes with this chilling reminder:

If there is no mystery about the nature of the chief justice’s views, I remain baffled by their origin. Clearly, he doesn’t trust Congress; in describing conservative judges, that’s like observing that the sun rises in the east. But oddly for someone who earned his early stripes in the Justice Department and White House Counsel’s Office, he doesn’t like the executive branch any better.

He made this clear in an opinion dissenting from a 6-to-3 decision this term in an administrative law case, City of Arlington v. Federal Communications Commission. The question was whether, when the underlying statute is ambiguous, courts should defer to an administrative agency’s interpretation of its own jurisdiction. The answer was clearly yes, according to Justice Scalia’s majority opinion that built on decades of precedent on judicial deference to agencies. The chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”

This is right — one difference between Scalia/Thomas and Roberts/Alito is that the former cut their teeth in an era in which judicial deference to the regulatory decisions of the executive branch was a key conservative value, and they retain at least some small measure of that during a Democratic administration. Roberts and Alito (the latter even more consistently), as they are an almost anything, feel free to pursue Republican policy goals unfettered by the constraints of any broader legal theories. Alas, when it comes to the D.C. Circuit essentially reading the recess appointment power out of the Constitution (which the Court will address next term), my guess is that Thomas and Scalia will lose any remaining scruples pretty quickly.

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