September 7, 2023

How SCOTUS Keeps the Government from Doing Its Job

David A. Strauss Gerald Ratner Distinguished Service Professor of Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic, University of Chicago Law School

This is the first piece in a series that details some of the national consequences of the Supreme Court's last term as it prepares to begin its 2023-2024 term in October.

The Supreme Court’s recent decisions on affirmative action, gun control, and discrimination against LGBTQ+ individuals all attracted a lot of attention, and deservedly so. But there has been another important development in the Court’s recent terms that is not as neatly captured in a newspaper headline. In several cases, the Court has made it harder for the federal government to improve the lives of the American people by providing them with clean air, clean water, and public health – some of the most important responsibilities of government.

To be fair, the justices of the Supreme Court are not the only ones to blame. Conservatives in Congress set the stage in what amounts to a kind of tacit joint venture with the conservatives on the Court. Conservatives in Congress have made it very difficult for Congress to enact important legislation on almost any subject. The filibuster, partisan polarization, and gerrymandering (which, as it happens, the Court refused to do anything about) have all contributed.

The result is that often, if problems are to be dealt with at all, the executive branch will have to take the lead. But the executive branch – meaning, in this situation, administrative agencies like the Environmental Protection Agency (EPA) – cannot act unless a law passed by Congress authorizes them to. Now fortunately Congress has not always been so dysfunctional. Often there are laws on the books, enacted before the current era of congressional paralysis, that deal with some of today’s ongoing problems. A lot of those laws were written in general terms, precisely to give administrative agencies leeway in deciding how to deal with problems that Congress knew it could not foresee and on which its members are not experts. Recently, faced with inaction by Congress, agencies like the EPA have used those broadly-written laws to deal with new problems – only to have the current Supreme Court stop them.

Climate change is an example. Early in the Obama administration, the House passed a “cap and trade” bill, the first serious proposed legislation dealing specifically with the greenhouse gases that cause climate change. But because of a threatened Republican filibuster, the bill never came to a vote in the Senate. So the Obama EPA used the Clean Air Act – an important environmental law that historically has enjoyed bipartisan support – as the authority for what came to be known as the Clean Power Plan, a set of rules that would have greatly reduced greenhouse gas emissions from power plants.

The Clean Air Act was passed before climate change was generally recognized as a problem. But like many laws that authorize administrative agencies to act, it contains broad language. The Supreme Court itself did not deny that the Clean Power Plan fit under that language. And if there is one thing that conservatives on the Supreme Court and elsewhere like to say, over and over, it is that courts should follow the letter of the law. The text governs, they say – not judges’ ideas about how things should be.

But not this time. In the Clean Power Plan case, as in several other cases, the conservative majority on the Court decided that sometimes issues are too important to be left to administrative agencies, even when that is the conclusion to which the language of the statute leads. They are “major questions,” which means, the Court says, that it is not enough that Congress has enacted general language that allows the EPA, or some other agency, to deal with them. The laws that Congress passes have to deal with those problems specifically, the Court says. Otherwise, the agencies cannot act. Congress had not specifically authorized the Clean Power Plan; the Clean Power Plan dealt with a major question; so, the Court held, the Clean Power Plan was unlawful.

What makes something a “major question”? That’s the critical issue. But the answer is quite unclear. Is it economic significance? The Clean Power Plan was economically significant, but so were several other environmental regulations that the Court did not think presented major questions.

Is a “major question” one that is politically controversial? That gives opponents of a government action a standing invitation to complain as loudly as they can in the hope of manufacturing what the Court will consider controversy, and gives the justices who don’t like a regulatory initiative a standing invitation to indulge their own policy views.

In any event, apparently the justices know a major question when they see it. And when they see it, the usual rules – the language of the statute governs; if the language is broad, the agency has a lot of discretion – no longer apply.

The “major questions” doctrine is not the only way that the Court is keeping the government from doing its job. There may be a majority on the Court that would insist on specificity in all laws, not just those dealing with “major questions,” in the face of decades of experience that demonstrate how unrealistic it is to expect a legislature to operate in that way. And when Congress does use more specific language, the Court – reversing a principle that was once conservative orthodoxy – increasingly says that the agencies’ views about the meaning of that language carry no weight. Or the Court will discover some other principle, having to do with federalism or private property or whatever, that limits the effect of the language. Last term, the Court did that in a case that significantly undermined the Clean Water Act, another critically important and, up until now, highly successful environmental law.

The undertone in these decisions, sometimes made explicit, is that the Court is defending democracy by protecting the American people against the depredations of unelected bureaucrats. But that is pretty much the opposite of the truth. An elected President stood behind, and took responsibility for, the Clean Power Plan. The same was true of the Biden administration’s efforts to deal with the pandemic, some of which were also blocked by the Court’s “major questions” doctrine.

The unelected bureaucrats in this scenario are, in fact, the justices, who, unlike the Administrator of the EPA or other agency heads, answer to no one and do not have to leave office when the voters reject their views. Those unelected justices now get to decide when a question is too “major,” when a law is not specific enough, or when Congress has not made its intentions sufficiently clear. Combine that with the congressional paralysis engineered by the conservative justices’ ideological soulmates in Congress, and the result is not just an undemocratic outcome – it is that the federal government cannot address some of the most important problems facing the nation.


David A. Strauss is the Gerald Ratner Distinguished Service Professor of Law and the Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School.

Regulation and the Administrative State, Separation of Powers and Federalism, Supreme Court