The Supreme Court is getting more ‘activist’ all the time

The Supreme Court is getting more ‘activist’ all the time

Paul Waldman — Read time: 4 minutes

I have a fantasy about Supreme Court confirmation hearings. A nominee, after getting yet another question about whether they’ll avoid “judicial activism,” gives a heavy sigh and says, “Look, senator. How about we set aside the baloney? We all know your definition of ‘judicial activism’ is ‘decisions I don’t like.’ Everybody wants sweeping, aggressive rulings as long as they’re in service of their preferred outcomes. Why don’t we admit it?”

That would be a bracing dose of candor. Instead, nominees navigate their confirmations by saying as little as possible and presenting themselves as blank slates, free of policy preferences or personal opinions that might somehow find their way into the court’s rulings.

And as Ketanji Brown Jackson prepares to run that gauntlet, the court she hopes to join is showing just how hollow the Republican protestations about “judicial activism” really are.

On Monday, the court heard a case involving the Environmental Protection Agency’s ability to regulate greenhouse gas emissions. The conservatives on the court — the same ones who promised fervently in their own hearings that they had no agenda other than fair interpretation of the law and the Constitution — made clear that they are itching to take a hatchet to the government’s ability to address climate change.

It was strange that the case was heard at all. What’s at issue — Obama-era regulations known as the Clean Power Plan — are not in effect, after a long legal and political road, and the Biden administration is working on entirely new ways for the EPA to reduce emissions from power plants.

Ordinarily the court wouldn’t bother with a case about a nonexistent regulation. “Here there is no regulation in place and no regulation will go into effect no matter what the court does,” as NYU law professor Richard Revesz told me.

But the justices were so eager to address it that they took the case anyway. Which brings us to the “major questions doctrine,” on which this case is likely to turn. Despite the august-sounding word “doctrine,” it isn’t written into law or the Constitution; it’s more of an idea, that agencies shouldn’t make enormously consequential rules unless they’re explicitly instructed by Congress to do so.

It has been around for decades, but as Revesz notes, until recently it was rarely invoked by the court, perhaps once every few years. Yet today, it’s as though the conservative supermajority is playing a video game and just unlocked a powerful new weapon it can use to slay its regulatory foes.

“It has become extremely promiscuous,” Revesz told me, and advocates now know they should include major questions claims in their arguments whenever they challenge a regulation, knowing the court’s conservatives will look kindly on it. “It happened very quickly.”

Just in recent months, the major questions doctrine came up when the court struck down the Biden administration’s eviction moratorium and its attempt to require vaccines or regular coronavirus testing for employees at large companies. And in oral arguments in the EPA case, it figured again.

But a doctrine like that one is extremely elastic, allowing a justice to apply it whenever and however they want to produce whatever result they like. And their ambitions are hardly modest. “This court is being extraordinarily activist,” Revesz told me.

We see something similar in all kinds of cases: The court creates some kind of standard that can be selectively applied, then Republican judges in lower courts take the ball and run with it. Which is one of the hallmarks of this moment: Republican judges are becoming increasingly bold in their decisions, either not caring whether they get reversed on appeal or knowing there’s a good chance the Supreme Court will ultimately uphold them.

For instance, the 5th Circuit Court of Appeals, a body dominated by Republican appointees, just blocked the Navy from making its own decisions about whether and how to deploy unvaccinated service members. You might find that an outrageous usurpation of the military’s authority to make military decisions — but not if you’re an anti-vaccine Republican.

Meanwhile, in Georgia, a district court judge ruled that a congressional map created by state Republicans likely violates the Voting Rights Act. But in light of a recent decision by the Supreme Court saying states shouldn’t change voting laws too close to an election, the maps will stay in effect for this year.

How close is too close to an election? As with most standards the court creates, there’s no hard and fast answer, which leaves them free to interpret it any way they want.

When Jackson appears before the Senate Judiciary Committee, she’ll be grilled by Republicans insisting that she forever forswear “activism” — exactly what those same Republicans cheer on when they like how it turns out. Imagine if we could all tell the truth about it.