While eyes are on Trump, Supreme Court conservatives prepare to rewrite the rulebook

By CNN Newsource

Published February 23, 2024 2:00 AM

By Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — Contentious Supreme Court oral arguments this week offered a reminder that while the public focuses on the Donald Trump election cases, the court’s actions this spring will be equally consequential for an array of rules set in Washington governing American life.

Supreme Court conservatives are accelerating their moves to overhaul the way the federal government protects Americans, whether from air pollution or unfair financial practices.

Although the decisions won’t be released until later this year, the frustration of liberal justices was palpable this week, as their sharp remarks from the bench drew attention to the pattern of the right-wing majority to diminish environmental, public health and consumer safeguards.

In recent years, the justices have invalidated rules for power-plant emissions, student-loan forgiveness and Covid-19 precautions. They are hearing a slate of new cases in the current session that seem bound to reinforce the current trend that breaks from decades of precedent.

Justice Elena Kagan, who has warned in outside speeches of public distrust when legal rulings change simply because of new appointees, brought that emphasis to the bench on Tuesday.

She posed a scenario involving a trade association that sues over a regulation, loses, then “10 years later … looks around and thinks: You know, the environment is more hospitable. The judges have changed. Let’s try again.”

The court’s actions in cases beyond the Trump election controversies will illuminate another effect of the former president: the conservative juggernaut is possible only because of his three high court appointees: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. (Since the Barrett confirmation in 2020, a 6-3 conservative dominance has taken hold.)

The transformed court and new cases challenging federal power – over consumer fraud, Securities and Exchange Commission disputes and environmental policy – have buoyed conservative advocates and wealthy business interests who say administrative power has impinged on American commerce.

Liberals and public-interest advocates counter that federal agencies provide crucial expertise and resources to protect the public good. One dispute, to be heard on March 26, centers on the Food and Drug Administration’s ability to declare an abortion pill, mifepristone, safe and effective for nationwide use.

Another major case, aired in January, tests a 1984 decision, Chevron v. Natural Resources Defense Council, that has given US agencies great latitude to interpret congressional statutes and enforce policy. The case has determined a swath of court judgments on agency policy, well beyond the environmental realms, and become one of the most cited rulings in Supreme Court history.

Kagan referred to the Chevron milestone this week, telling a Justice Department lawyer defending a Federal Reserve deadline for lawsuits, “There is obviously another big challenge to the way courts review agency action before this court. … (I)f Chevron were reversed, how does that affect what you’re talking about here?”

Assistant to the US solicitor general Benjamin Snyder replied that a decision for the company suing over a Federal Reserve rule, “would magnify the effect of any other decisions changing the way that this court … (has) approached administrative law questions, because it would potentially mean that those changes would then be applied retroactively to every regulation that an agency has adopted in the last, I don’t know, 75 years or something.”

When that challenge to the Chevron principle was heard last month, Gorsuch suggested it unfairly tipped the balance to agency power. “The government always wins,” he said. “Chevron is exploited against the individual in favor of the government.”

In the new case heard on Tuesday, brought by owners of a North Dakota truck stop, Gorsuch sounded sympathetic. The Corner Post is protesting a Federal Reserve rule adopted in 2011 that caps debit card fees merchants obtain with every transaction.

It argues the cap violates a federal prohibition on “arbitrary and capricious” actions. The Federal Reserve, defending the rule, said any lawsuit against it should have been filed within the six-year statute of limitations. Corner Post, which began operating in 2018, contends the clock should start running when a regulation affects a business.

The Federal Reserve won in lower courts, but the justices agreed to hear the appeal, and conservatives appeared receptive to the Corner Post’s argument that the clock starts when a legal injury to a particular plaintiff occurs.

“The normal rule,” Gorsuch said at one point, “is that the plaintiff’s injury is the moment of accrual.”

Chief Justice John Roberts expressed similar sentiment, telling Snyder, “You have an individual or an entity that is harmed by something the government is doing, and you’re saying, well, that’s just too bad, you can’t do anything about it because other people had six years to do something about it…” The chief justice echoed the Corner Post argument that “everybody is entitled to their day in court.”

Liberal justices were plainly of a different mind.

“I worry that if you win, every agency rule in existence today would be subject to some sort of a challenge in this way,” Justice Ketanji Brown Jackson told the lawyer for Corner Post, Bryan Weir. “Why wouldn’t this be extraordinarily destabilizing … I mean, we have settled rules that govern all sorts of industries, the healthcare industry, the finance industry, and people have adjusted themselves around them. There are experts who understand how the law works and companies follow suit. If I understand you correctly, each new company that is created in an industry can suddenly bring a challenge that might risk … invalidation of the entire basis of the industry.”

Weir rejected “any opening of the flood gates or parade of horribles because … most parties are harmed the day a regulation is actually issued.”

EPA rules under fire

Liberal criticism was even more pronounced in Wednesday’s case arising from litigation against a Biden administration policy that imposes strict emission limits on power plants and other industries in upwind states. Called the “good neighbor” rule, the EPA program is intended to reduce smog and air pollution that blows across state lines and threatens public health.

A lower US appellate court, the DC Circuit, specializing in such administrative law disputes, had allowed early implementation of the cross-state restrictions while the litigation brought by states and power companies plays out. (Compliance with the emissions limits would be required in 2026.)

Three Republican-led states and power industry groups turned to the high court, seeking immediate relief and asking that any implementation be barred. In December, the justices took the rare step of scheduling oral arguments on the simple question of whether the “good neighbor” rule should be paused. Such preliminary issues are nearly always resolved without arguments.

This week’s hearing sounded somewhat like a fait accompli, as a majority of conservatives appeared ready to block the policy that would require power plants in designated states to install technologies to reduce nitrogen-oxide emissions that waft toward downwind states.

Justices on the right noted that the EPA plan originally applied to 23 upwind states but now covers only 11 states because of court decisions arising from separate litigation against EPA. Roberts referred to “the hundreds of millions of dollars of costs” being incurred.

Malcolm Stewart, deputy US solicitor general, told the court the EPA anticipated that covered states would change over time, adding, “EPA devised the requirements for each state in order that they would be workable if a smaller or a larger set of states were ultimately covered.”

The liberal justices protested, likely in vain, the court’s handling of the case.

“So we’re here on your motion for emergency relief, and it’s fairly extraordinary,” Jackson told Ohio Deputy Solicitor General Mathura Sridharan, adding that the DC Circuit had yet to hear the merits of the case. “So I’m trying to understand what the emergency is that warrants Supreme Court intervention at this point.”

“At the breakneck speed we’re going, in order to get into compliance with an unlawful federal rule, we are spending immense sums, both the states as well as our industries,” Sridharan said.

Jackson later observed, “Surely, the Supreme Court’s emergency docket is not a viable alternative for every party that believes they have a meritorious claim against the government and doesn’t want to have to comply with a rule while they’re challenging it.”

Justice Sonia Sotomayor suggested it was “an inversion of normal rules” to try “to bypass the very court (the DC Circuit) who’s going to make the substantive decision” on the EPA’s plan.

Kagan focused on the multiple preliminary issues that lower court judges would have typically assessed before the case reached the justices.

As she fired questions at Catherine Stetson, representing the industries, Kagan added, “I don’t want to push you too hard on this because it’s not your fault this is coming in a weird posture.”

The implication was that any “fault” rests with conservative colleagues. And if the oral arguments served as a guide, the justices who have previously curtailed the EPA’s ability to implement air and water protections will similarly put the “good neighbor” policy on hold.