The Appearance of Justice – Part 1

In 1937, President Franklin Roosevelt announced a proposal to add up to six new justices to the Supreme Court. He called it a reform to address an aging bench. Everyone understood what it was.

The Court, which had been striking down New Deal legislation at a consistent rate, changed direction before Congress acted on the proposal. In West Coast Hotel v. Parrish, the justices upheld a state minimum wage law — a category of legislation they had recently found unconstitutional. The phrase that entered the history books is "the switch in time that saved nine."

What the phrase obscures is what was actually saved. The nine justices kept their seats. The principle they abandoned was the one that had made them useful.

From 1937 forward, the federal judiciary largely stopped asking whether the government had constitutional authority to act. It started asking whether the government's action was reasonable. These are not the same question. The first puts the government on trial. The second gives it a passing grade for showing up.

In 1984, the Supreme Court decided Chevron U.S.A. v. Natural Resources Defense Council. The case involved the Environmental Protection Agency's interpretation of the Clean Air Act. The vote was 6-0, written by a liberal justice, and upheld the Reagan EPA's more permissive reading of the statute.

The rule the decision established — Chevron deference — held that when a federal statute is ambiguous, courts should defer to the agency's interpretation, provided that interpretation is reasonable.

The logic was straightforward: agencies are staffed by experts. Courts are not. When Congress writes an ambiguous law, the agency charged with implementing it understands the subject matter better than any judge. In exchange for consistent rulemaking by technical specialists, courts would yield on close questions of statutory meaning. The trade looked sensible. What it did not price in was the institutional interest of the party making the interpretation.

An agency charged with regulating an industry has an institutional interest in expanding the scope of that regulation. An agency with enforcement authority has an institutional interest in the broadest possible definition of what it can enforce. Asking an agency to interpret its own authority is asking it to define its own power — and institutions do not define their own power narrowly.

What began as deference on technical regulatory questions became, within a decade, the primary mechanism by which federal agencies of every administration expanded their authority beyond anything Congress had explicitly authorized. Agencies wrote regulations on the assumption that courts would defer to them. The regulations accumulated. The agencies that administered them accumulated staff, budget, and authority. Chevron deference was cited in over 18,000 federal court decisions in the forty years it remained in force.

On June 28, 2024, the Supreme Court decided Loper Bright Enterprises v. Raimondo and overruled Chevron. The case involved commercial fishermen required by federal regulation to pay for federal monitors on their own vessels — a requirement that appeared nowhere in the statute the agency cited as its authority. The Court held that courts must exercise independent judgment when deciding whether an agency has acted within its statutory authority.

What the Court did not hold is that the 18,000 decisions built on Chevron deference were invalidated. Prior cases that relied on the framework would need to be challenged individually. The agencies still exist. The regulations still apply. The enforcement apparatus is still funded.

The door through which four decades of deference passed has been closed. What passed through it remains.

The separation of powers was not designed to make government efficient. It was designed to make government answerable. An independent judiciary — a body that reported to neither Congress nor the executive — was the mechanism by which both could be told when they had exceeded their authority.

For the first century of the republic, courts largely held to that role. A law that exceeded constitutional authority was struck down. An executive action without statutory basis was void. The government was required to show its work.

What the New Deal produced, and what Chevron formalized, was a judiciary that stopped requiring the government to show much of anything. When courts decide that the government's interpretation of its own authority is sufficient, the government has become its own judge.

The court that decided Chevron in 1984 thought it was settling a narrow dispute about clean air regulation. It was settling something else entirely.

Next: The agency that prosecutes you, employs your judge, and reviews your appeal is the same agency. The Supreme Court finally said so in 2024. The win rate inside that system had been public for years.