A stitch in time
An epitaph for the Biden campaign, an observation on Moyle and Rahimi, and an encomium for Chevron
There is a wonderful, touching moment in season one of The Expanse. (Sorry for the forthcoming spoiler.) As an enemy she did not see coming closes around her and the situation slides from dire to defeat, Captain Theresa Yao, played deftly by Jean Yoon, prepares to scuttle her ship. Her fingers on the key, she affords herself one last look over her command deck and remarks, more in disbelief than sorrow, “I didn’t think we could lose.”
Last week, Joe Biden and Donald Trump had a debate. Biden wanted that debate; he sought it out. He didn’t think he could lose.
He lost. His hubris has now laid bare his incapacity. He has always been a fool, but now he stands naked before the world, a senile fool. When even Joe Scarborough—hitherto a reliable Biden shill—thinks the jig’s up, and when even the editors of the New York Times think the jig’s up… I have not believed that Democrats have been blind to Biden’s decline. I think they saw it, the same as the rest of us, but they chose to be in denial. On Friday morning they floated past Alexandria and tasted salt.
Prior to the debate, I had argued that Biden could still recover this without departing the ticket. Ditch Harris (negating the then-hypothetical age issue), Sister Souljah the pro-Hamas crazies, and focus on the border. Well, that’s all out the window now. It’s too late for one stitch to save nine; this will take all the thread we have. Still, the last thing America wanted was a rematch between these two dreadful candidates, and there’s time to fix this. The truth is that Democrats have a thin bench of plausible candidates—but not no candidates. Governors Andy Beshear or Jared Polis; Senators Amy Klobuchar or Joe Manchin; L.A. mayor Karen Bass. In other circumstances, we might gainsay any of these as not famous enough, not experienced enough. But a bad candidate is better than a terrible candidate, and besides: In 2007, few had heard of the Junior Senator from Illinois, and he, Barack Obama, did okay.
§
I don’t want to talk about Moyle v. United States, but I do want to respond to Andy McCarthy, which makes a bit of Moyle talk inevitable.
The ordinary course of federal litigation is this. A case comes before the district court where one federal judge makes a decision. That decision is appealed to the Court of Appeals where three federal judges sit in a panel. The losing side then files a petition for a writ of Certiorari (roughly, “review”) in the Supreme Court, and when their petition fails to attract the interest of more than three justices, the petition is denied.
Of course, there are exceptions to that rule.1 The biggest exception is that the Court sometimes grants petitions, which it does at a rate of between seventy to a hundred per year. Thereafter it usually decides the question it agreed to hear, though sometimes it will decide some other question (for example, answering a statutory question to avoid a constitutional question), or even “DIGging” the case, dismissing it as improvidently granted, typically because some serious and unexpected defect has emerged after the case was granted.2 But, that’s how things normally go.
That is not the course Moyle took to the Supreme Court.
There is a provision, dusty and seldom invoked (still more rarely granted) in which the court will be asked to intervene before the Court of Appeals weighs in. It’s called a petition for writ of Certiorari before judgment (“CBJ”). Its most famous invocation was in United States v. Nixon, and more recently, Trump nemesis Jack Smith sought it and was refused, only for the court to grant cert after the D.C. Circuit weighed in on the same case.
Moyle after the Supreme Court decided Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (2022). Idaho had enacted a “trigger law,” creating a legal regime to become operative if and when the Supreme Court should ever overrule Roe v. Wade, 410 U.S. 113 (1973). When the court obliged in Dobbs, the United States sued Idaho, arguing that EMTALA preempted Idaho’s new regime. United States v. Idaho, 83 F.4th 1130, 1134 (9th Cir. 2023). The District Court granted a preliminary injunction, and the Ninth Circuit refused to dissolve the injunction, whereupon Idaho came to the Supreme Court seeking a stay of the injunction and CBJ. It got both. This week, the court divided 3-3-3, with three justices of the view that the court should decide the case, and six justices voting to DIG it for two conflicting sets of reasons.
McCarthy is convinced that there is chicanery going on but I don’t see why.
The court is not a machine and the justices are not automata. It’s a collegial institution, but one that’s too small for the individuals and their unique gestalts to disappear, homogenizing into blocs.3 It’s conventional to say that the granting of cert is an exercise of “the court’s” discretion, guided by the factors of Rule 10, but it’s a mite more accurate to say that the granting of cert is an exercise of guided discretion on the part of each of nine individuals who vote to grant, or not, based on their evaluation of the case. Chief Justice Rehnquist thought it “a subjective decision, made up in part of intuition and in part of legal judgment.”4 Justice Frankfurter thought that “[a] variety of considerations underlie” each Justice’s vote, “and as to the same petition different reasons may lead different Justices to the same result.” Maryland v. Baltimore Radio Show, 338 U.S. 912, 917 (1950) (Frankfurter, J., respecting denial of cert). A case may meet all the
technical requirements and yet may commend itself for review to fewer than four members of the Court. Pertinent considerations of judicial policy here come into play. A case may raise an important question, but the record may be cloudy. It may be desirable to have different aspects of an issue further illumined by the lower courts. Wise adjudication has its own time for ripening.
Id., at 918. Thus, among the justices, and even within a single justice, there may be “conflicting” and “even confusing reasons for denying petitions for certiorari.” Ibid.
And—axiomatically, it seems to me—of any four justices voting to grant, there must be a marginal justice who is least persuaded. It seems plausible to me that in any given case, this marginal justice may be convinced enough to provide a fourth vote at the cert stage, only to learn something in the plenary stage that resolves some relevant question such that, if she had the vote over again, she would no longer find voting to grant appropriate. And in some cases (though the internal mechanics are hidden behind the court’s veil) that is what happens when the court DIGs a case.
The same applies a fortiori in a case in a CBJ case. For one thing, petitions for CBJ are subject to a “very demanding standard.” Mount Soledad Memorial Association v. Trunk, 134 S. Ct. 2658, 2659 (2014) (Alito, J., regarding denial of such). So, not only must the marginal justice have thought the case to grant was stronger than normal, it follows that any subsequent doubts are magnified to the same degree.
For another, any downside of denying or dismissing the writ has less traction because this will not be their last bite at the particular apple. Deny or dismiss CBJ today and the case will almost certainly return in due course, and in a more regular and perhaps clarified posture—which is, of course, exactly what happened when the court denied cert before judgment in Trump v. United States, only to subsequently grant it after the D.C. Circuit had weighed in. (The Supreme Court, after all, is a court of review, not first view, and it wasn’t so very long ago that Very Serious People™ were wringing their hands over a modest uptick in CBJ.)
Clearly, at least one of the justices who voted to grant cert (probably Justice Barrett) was the marginal justice at the cert stage and learned things during briefing and argument that made them think they were mistaken. And that is exactly what Justice Barrett’s concurrence, which is joined by the Chief Justice and Justice Kavanaugh, tells us. Barrett says she is “now convinced that these cases are no longer appropriate for early resolution.” Slip op., at 4. She explains:
In its stay application, Idaho argued that the Government’s interpretation of EMTALA would render Idaho’s Act virtually unenforceable . . . [and] that the Government’s interpretation would ‘threaten religious healthcare providers’ by forcing doctors and hospitals to perform abortions regardless of conscience objections. Both of these points were relevant to the Court’s assessment of the irreparable harm that Idaho would suffer from the preliminary injunction, as well as the need for immediate determination in this Court.
At the merits stage, however, the United States disclaimed these interpretations of EMTALA . . . [and] in this Court, petitioners represent that [contrary to the United States’ contention] the Act permits physicians to treat each of these condicitons with emergency abortions
Id., at 6 (cleaned up.) Thus, with the impetuses to deviate from regular order removed, the three justices vote to DIG the case “and permit proceedings to run their course in the courts below.” Id., at 7. Why this should be cast in conspiratorial tones is beyond me.
Let me also suggest that Moyle is, in a certain sense, akin to United States v. Rahimi, also decided this month.
New York State Rifle & Pistol Association v. Bruen held that the government must defend a regulation of firearms by demonstrating its consistency with America’s historical tradition of firearm regulation. 142 S. Ct. 2111, 2126 (2022); see Atkinson v. Garland, 70 F.4th 1018, 1019 (7th Cir. 2023) (“Bruen announced a new framework for analyzing restrictions on the possession of firearms . . . anchor[ed] . . . exclusively in the Second Amendment's text and the pertinent history of firearms regulation, with the government bearing the burden of affirmatively proving that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms” (cleaned up)). The opinion was written by Justice Thomas and joined by the Chief Justice and Justices Alito, Gorsuch, Kavanaugh, and Barrett.
Bruen ignited a firestorm of criticism from the left. Mark Joseph Stern, for example, called it “maximalist,” and thought it “difficult to overstate the consequences of Thomas’ decision.” But notice what Stern just said: He called it Thomas’ decision. Thomas was one member of the majority. And, yes, he wrote it, but majority opinions aren’t like concurrences or dissents. With a concurrence or a dissent, a justice writes what they want to write, and if other justices join, great, and if not, that's fine. Let them write their own gorram concurrence/dissent! But the assignee of a majority opinion is supposed to write an opinion that reflects the consensus of the conference majority. That can be tricky. The assignee has their own style (for example, Chief Justices Rehnquist and Roberts favor(ed) minimalism while Justice Scalia wanted clean, clear rules of broad applicability) and the assignee has their own view, which may be broader or narrower than consensus. They naturally want to write an opinion that reflects consensus while tugging it toward their own position.
In Rahimi the court considered whether a federal statute prohibiting individuals subject to a domestic violence restraining order from possessing a firearm passed muster under Bruen. Eight members of the court concluded that the answer is yes. The lone dissenter: Justice Thomas. Just as in Moyle the marginal justice voting to grant cert bolted, in Rahimi, we discovered that the author of Bruen was the marginal vote in that case and the justices who joined his opinion weren’t willing to go where he thought it lead.
Of course, the people who were hysterical about Bruen are not mollified by Rahimi. The reliably hysterical Ian Millhiser, for example, thinks that what Thomas meant in Bruen is a ludicrous trap from which the court must now escape, just as Thomas thinks Bruen was a promise from which the court is now retreating. What unites them is reading Bruen in the maximalist way that Thomas doubtless wanted it to be taken. But with Rahimi, it’s now clear that Thomas was the outlier in Bruen. He dragged the majority as far as it was willing to go, writing an opinion that went as far as he could without losing his majority. But it’s now clear that none of the justices who joined him were willing to go any further than exactly what the words he wrote said—and, of great significance, no further than what they understood the words to say, understandings that were narrower than those of Thomas or Millhiser.
I will admit that I have been skeptical of Bruen, which strikes me as an attempt to import into the Second Amendment context a test analogous to Washington v. Glucksberg, 521 U.S. 702 (1997), or Marsh v. Chambers, 463 U.S. 783 (1983). Which, perhaps, means that I too read Bruen more broadly than the justices who joined Thomas’ draft. Time will tell. But for now, Bruen stands for a narrower proposition than the fanatics on each side—the trump cult and the woke faction, if you like—have read it to announce.
§
Usually, what looks like hyperbolic comments about something new out of the Supreme Court is just that. When people say that a decision is “catastrophic” or “revolutionary” they mean, “I don’t like it.” By contrast, Loper Bright v. Raimondo, handed down on Friday, genuinely detonates a bomb in the law, overruling Chevron, the cornerstone of modern administrative law, cited in over 16,000 cases over forty years.
The Chevron doctrine pertains to what courts should do when confronted with a challenge to an executive agency’s interpretation of a statute. At the level of Schoolhouse Rock, Congress writes statutes and the President enforces them. But even at this highly abstract level, we all know it’s not that simple; the President seldom personally administers statutes. (S)he relies on the agencies of the executive branch as his or her “hand[s],” United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965). In practice, legislative ambiguity is inevitable, and even where it is not, statutes often deliberately leave scope for agency discretion.
Consequently, to execute the law usually requires interpreting the law in myriad ways. Recognizing this, Chevron held that
When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges . . . [must] respect legitimate policy choices . . . . The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: “Our Constitution vests such responsibilities in the political branches.”
Chevron USA v. NRDC, 467 U.S. 837, 865-66 (1984) (quoting TVA v. Hill, 437 U.S. 153, 195 (1978)). “While agencies are not directly accountable to the people,” the court noted,
the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.
Id., at 865. It therefore created a two-step framework to ascertain when courts should defer to agency interpretations of statutes. “At step one, we ask whether Congress spoke to the precise question at issue. At step two, we ask whether the agency's interpretation of the statute is permissible.” Myrick v. City of Hoover, 69 F.4th 1309, 1315-16 (11th Cir. 2023) (cleaned up).
Let’s dig in a bit more. Chevron step one asks whether the statute directly and unambiguously answers the question. “[I]f so then that is the end of it: the agency and courts alike are bound by what Congress wrote. If Congress has not spoken clearly, then we move on to step two, in which we consider whether the agency’s interpretation reflects a permissible construction of the statute.” Cook County. v. Wolf, 962 F.3d 208, 221 (7th Cir. 2020) (cleaned up). It may happen, however, that “the statute is silent or ambiguous with respect to the specific issue, [in which case] we proceed to step two of the Chevron framework, at which we determine whether the agency's answer is based on a permissible construction of the statute.” Veteran Warriors v. Secretary of Veterans Affairs, 29 F.4th 1320, 1326–27 (Fed. Cir. 2022). And, critically, if step two is also satisfied, courts should “defer . . . to the agency’s interpretation so long as the construction is a reasonable policy choice for the agency to make.” Bastias v. U.S. Attorney Gen., 42 F.4th 1266, 1272 (11th Cir. 2022) (cleaned up). Simply put, “where a statute’s plain terms admit of two or more reasonable ordinary usages, the [agency’s] choice of one of them is entitled to deference.” National Cable Telecom. Assn. v. Brand X Internet S, 545 U.S. 967, 989 (2005).
This framework has held good for decades and Chevron is perhaps the single most cited case in the canon. Overruling it is a mistake. This is not like Roe-Casey, a radioactive and deeply problematic doctrine built on sand. No, this is one of those areas of law where misgivings should be set aside because “it is more important that the applicable rule of law be settled than that it be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405–06 (1932) (Brandeis, J., dissenting). I am not convinced by the majority’s arguments that Chevron is not right. But even if I were, “an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent. Or otherwise said, it is not alone sufficient that we would decide a case differently now than we did then.” Kimble v. Marvel Entertainment, 576 U.S. 446, 455 (2015). The majority barely bothers to defend this point.
I take special exception to the majority’s insinuation that Justice Scalia would approve of this demolition project, citing him six times. Yet, Scalia was a Chevron hawk. He “champion[ed]” it. What is true that in the last few years of his life, Scalia grew wary of Auer deference.5 Auer deference is a doctrine calling on courts to “defer[] to agencies’ reasonable readings of genuinely ambiguous regulations.” Kisor v. Wilkie, 139 S. Ct. 2400, 2408 (2019). Though Scalia wrote the court’s opinion in Auer v. Robbins, 519 U.S. 452 (1997), time and perspective change all things, and he “bec[a]me increasingly doubtful of its validity. On the surface, it seems to be a natural corollary . . . of the rule that we will defer to an agency’s interpretation of the statute it is charged with implementing, see Chevron USA v. Natural Resources Defense Council, 467 U.S. 837 (1984). But it is not.”6 It is likely that he would have dissented in Kisor, which declined to overrule Auer.
But what is not present in the line of Scalia opinions challenging Auer deference is any attack on Chevron. That is puzzling; if, “[i]n practice, Auer deference is Chevron deference applied to regulations rather than statutes,”7 and if Scalia harbored some skepticism of Chevron, one would expect this line of opinions to assail Chevron itself. To the contrary, Chevron is contrasted, warmly.8 And in point of fact, we need not speculate. Justice Scalia told us explicitly that Chevron is correct. Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 518. He expected it to “endure” because compared to the alternatives, it “more accurately reflects the reality of government, and thus more adequately serves its needs.” Id., at 521. And given the opportunity to say that he had changed his mind, on the occasion of Chevron’s 25th anniversary, he declined.
What is all the more baffling about all this is that Loper Bright is written by Chief Justice Roberts. When Kisor refused to overrule Auer on stare decisis grounds, Roberts joined that section of the opinion. It is hard for me to understand how the same Roberts who fretted over the “serious jolt to the legal system” of overruling Roe, Dobbs, supra, at 2316 (Roberts, C.J., concurring), could write an opinion overruling Chevron. That is a far more serious jolt even assuming Chevron’s defects.
Notes & Queries.
Today's cover image was snapped by Rainer Z, licensed under CC-BY-SA.
Hear me out: Trump brand dog poo bags. Gold bags. (Well, gold-colored bags.) Slogan, “the most trusted name in shit.”
I don’t quite understand why Democrats who say things like “I’m voting for the agenda not the guy,” meaning to shore up wavering Democrats, don’t understand why those of us who don’t support the agenda aren’t inclined to vote for the guy.
Cornucopia.
There are three-judge district courts, sometimes. Rehearings en banc are sometimes sought and infrequently granted. And even after the 1980s, in a vanishingly small category of appeals, the Supreme Court’s jurisdiction remains mandatory not discretionary. See, e.g. Alexander v. South Carolina NAACP, No. 22-807 (May 23, 2024); Cooper v. Harris, 137 S. Ct. 1455 (2017). There is even a lopsided debate over whether the court’s original jurisdiction is discretionary. See Nebraska v. Colorado, 136 S. Ct. 1034 (2016) (Thomas, J., dissenting from denial of leave to file). I’m sympathetic; it’s not clear to me why the court has exercised the discretion that Congress has granted it as to its appellate docket in what seems like the mandatory jurisdiction of its original docket. It’s underexplained in the cases from the 1960s and 1970s where it seemingly began, and unexplained subsequently. Watch this space.
See, e.g., Madison v. Alabama, 139 S. Ct. 718 (2019); Boyer v. Louisiana, 569 U.S. 238 (2013).
See Lipez, Some Reflections on Dissenting, 57 Maine L. Rev. 314, 317 (2005) (the “paradox” of the court is that it’s “simultaneously the entity and its members” (citing Brennan, In Defense of Dissents, 37 Hastings L. J. 427, 429 (1986))).
Rehnquist, The Supreme Court 234 (2d ed. 2004); accord Patton v. Yount, 467 U.S. 1025, 1053 (1984) (Stevens, J., dissenting) (“[W]hy the Court grants certiorari in any given case usually involves considerations of both fact and law . . . [and] [t]he desire to . . . do something about such an apparent miscarriage of justice . . . is difficult for judges as well as laymen to resist”).
See Talk America v. Michigan Bell Telephone, 564 U.S. 50, 67 (2011) (Scalia, J., concurring); Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 616 ff. (2013) (Scalia, J., concurring in part and dissenting in part); Perez v. Mortgage Bankers Association, 575 U.S. 92, 111–12 (2015) (Scalia, J., concurring in judgment).
Talk America, supra, at 68 (Scalia, J.).
Decker, supra, at 617 (Scalia, J.).
Id., at 621 (Scalia, J.) (noting the “beneficial pragmatic effect” of Chevron deference); Perez, supra, at 1212 (Scalia, J.) (“the rule of Chevron, if it did not comport with the APA, at least was in conformity with the long history of judicial review of executive action”); but see id., at 1212 (“By deferring to interpretive rules, we have allowed agencies to make binding rules unhampered by notice-and-comment procedures. ¶ The problem is bad enough, and perhaps insoluble if Chevron is not to be uprooted, with respect to interpretive rules setting forth agency interpretation of statutes. But an agency's interpretation of its own regulations is another matter”).