The Major Questions Doctrine: An Inquiry Into Doctrinal Shifts and Supreme Court Power

The Supreme Court’s decision in West Virginia v. EPA established the “major questions doctrine” as binding law, destabilizing the Court’s previous doctrinal approach to administrative regulations and announcing the beginning of a new legal regime. Before West Virginia, courts evaluated administrative regulations under the Chevron deference framework, where statutory ambiguity required courts to defer to agencies’ reasonable interpretations of the law. West Virginia changed the legal landscape by barring agencies from answering any questions of major economic and political significance without clear congressional authorization. West Virginia, which argues that the major questions doctrine has its roots in FDA v. Brown & Williamson. However, Brown & Williamson does not provide a foundation for the major questions doctrine as it appears in West Virginia. Rather than arising naturally from common law adjudication, wherein judges seek cases with analogous facts and then apply parallel reasoning, the Court produced the major questions doctrine by excising particular phrases from legal decisions and treating those phrases as binding law. The history of the major questions doctrine thus suggests that factors external to law influenced its development. 

This Thesis seeks an explanation for the major questions doctrine in the political circumstances of its creation. It does so by comparing West Virginia to another significant doctrinal shift, that of West Coast Hotel v. Parrish during the New Deal era. The Supreme Court’s decision in West Coast Hotel transitioned the judiciary away from interference with federal policy and towards a posture of deference towards the federal government. By contrast, West Virginia discourages the judiciary from deferring to federal policy and instead encourages courts to invalidate administrative regulations. West Coast Hotel was decided during a time when political consensus strengthened the political branches of government, whereas West Virginia was decided during a time when political polarization weakened the political branches. This comparison indicates that shifts in judicial doctrine occur within a system of interbranch power dynamics, wherein the Court can assess its strength relative to the political branches and act accordingly. 

Introduction

   I. Why The MQD?

      A. The MQD is a Critical Doctrinal Shift

      B. Political Implications of the MQD

   II. The MQD: Becoming A Doctrine

      A. So-called “Major Questions” Cases

      B. The Court’s Legal Reasoning

   III. Another Doctrinal Shift: The New Deal 

      A. Setting the Stage

      B. The Switch in Time

   IV. Comparing The MQD And The New Deal 

      A. Doctrinal Shifts: Deference vs. Interference

      B. Political Contexts: Consensus vs. Polarization

      C. Explanations: How Politics Affects the Court’s Power

Conclusion

 

This piece won the 2024 Hutchinson Prize.

Introduction

On June 30, 2022, the U.S. Supreme Court handed down West Virginia v. EPA, declaring that the “major questions doctrine” required it to invalidate the Clean Power Plan, an EPA interpretation of the Clean Air Act. The EPA’s attempt to set emissions goals for power plants constituted a question of “vast economic and political significance,”^[1] which the agency could not answer without “clear congressional authorization.”^[2] The decision was met with confusion from the legal community, many of whom had never heard of the doctrine before and most of whom had not anticipated such a serious departure from established precedent.^[3] Justice Kagan, writing for the dissent, accused the Court of “magically” creating a new doctrine for its own convenience.^[4] The phrase “major questions doctrine” or “major questions canon” had appeared sporadically in lower court opinions, mostly penned by dissenting judges, but the federal circuit courts rarely gave weight to such arguments. Instead, they operated by the doctrine which had controlled courts’ approach to agency regulations since 1984: Chevron deference, which instructed courts to defer to reasonable agency interpretations of statutes. West Virginia created a substantial carveout to Chevron by broadly foreclosing all questions of “vast economic and political significance,” a rule with the potential to severely restrict agencies’ range of motion. The major questions doctrine (“MQD”) was a substantial shift in judicial policy towards administrative agencies, yet it could not have been predicted by the case law preceding it.

Shifts in judicial doctrine happen all the time. Less often, however, do they involve such a decisive departure from precedent or signal such a significant change in the scope of federal authority. To understand the nature of the Court’s decision in West Virginia, I will compare it with another major doctrinal shift which also had massive implications for government power. In the early twentieth century, the Supreme Court relied on a doctrine commonly referred to as “Lochnerism,” named for Lochner v. New York,^[5] to invalidate minimum wage and maximum hour laws. The Court abruptly abandoned Lochnerism in West Coast Hotel v. Parrish,^[6] when it upheld a Washington state minimum wage law only ten months after invalidating a near-identical New York law.^[7] Observers coined the phrase “switch in time that saved nine” to describe West Coast Hotel, reflecting the prevailing view that the Court had changed its stance on New Deal policy in an effort to preserve its composition and power.^[8] Like West Virginia, West Coast Hotel was a significant shift in judicial policy which could not have been predicted by precedent alone. Unlike West Virginia, wherein the Court shifted away from a posture of deference to the federal government and towards a posture of interference, the Court in West Coast Hotel shifted away from a posture of judicial interference and towards a policy of judicial deference. In both cases, the degree and timing of the Court’s shift in policy cannot be attributed solely to the Justices’ ideological views.

In this paper, I seek to interrogate the origins of the MQD and ask how it emerged as a doctrine. First, I will ask whether the MQD truly has support in precedent, and if its arrival can be explained through common law legal reasoning. I will argue that the MQD is not supported by seminal case law in the area of agency statutory interpretations, particularly FDA v. Brown & Williamson.^[9] Rather, the Court crafted a doctrine by extracting certain phrases from Brown & Williamson without proper attention to the most crucial aspect of that Court’s reasoning. Second, I will move beyond the Court’s legal reasoning to place the MQD within the broader political context of the Court’s doctrinal shift. I will compare West Virginia to West Coast Hotel, and by doing so create a contrast between political consensus during the New Deal and political polarization now. I will argue that the relative power of the political branches vis-à-vis the Supreme Court is a critical factor in the direction of judicial policy. The existence of political polarization stymies the political branches’ ability to check the Court, allowing the Court to make decisions which may not be available to it during times of political consensus. Moreover, changes in the realm of administrative law are especially consequential in times of polarization, because Congress must rely more heavily on agencies to effect policy and fill in legislative gaps. When the Court removes agencies’ ability to act, as the MQD indicates it intends to do, paralysis in Congress may result in paralysis in government as a whole.

This Thesis will proceed in four parts. In Part I, I will explain how the MQD is a doctrinal shift and why it matters, by comparing the MQD to Chevron deference and by outlining its potential to stymie government action. In Part II, I will investigate the MQD’s foundation in precedent through an analysis of FDA v. Brown & Williamson and a brief discussion of other cases cited in West Virginia, ultimately demonstrating that the MQD is not supported by precedent. In Part III, I will provide background for and a fuller explanation of the judiciary’s doctrinal shift during the New Deal, focusing on the Court’s inability to continue resisting the New Deal agenda due to President Roosevelt’s political power. In Part IV, I will compare the political contexts in which the crucial cases of these two eras were decided, emphasizing relative consensus in the political branches during the New Deal in contrast to relative polarization in the political branches in recent times. I will offer an explanation for the different paths these two different courts took, which will center on the strength of the political regimes each Court confronted as it handed down decisions.

I. Why The MQD?

Courts create new doctrines all the time. In a common law system where precedent is binding, courts consistently decide similar cases in similar ways. Over time, a popular method of resolving a particular type of case might acquire a name—strict scrutiny, the Lemon test, Pickering balancing, and so on. Sometimes these doctrines are unremarkable. Sometimes they fundamentally shift the structure of constitutional law. Both the MQD and the New Deal fall into that second category of doctrinal shift. The New Deal inaugurated an era of federal economic regulations, in contrast with the judiciary’s earlier insistence that the federal government had no place interfering with private economic transactions or intrastate commercial activities. The MQD, for its part, symbolizes the judiciary’s reorientation of its earlier approach to the administrative state. Before the MQD, the judiciary and the administration were partners in interpreting statutes; now, the courts have almost sole power to interpret statutory law. After the MQD, every question of significance must be resolved by Congress within legislation. Moreover, the MQD’s insistence on legislation as the only proper site of policymaking poses problems for an increasingly polarized government.

A. The MQD is a Critical Doctrinal Shift

The MQD arrived into a judicial world with a rich and complex history of interacting with and regulating the administrative state. The “administrative state” is a catch-all term for the body of regulatory agencies created by Congress for the purpose of effecting its legislation. In general, Congress writes a statute which creates a regulatory agency and confers some sort of power upon it—collecting taxes, enforcing environmental legislation, inspecting workplaces for compliance with health and safety standards, and so on. These functions place regulatory agencies at least partially under the control of the executive branch, which is charged with effecting congressional legislation. As a result, the administrative state sits oddly between the executive and legislative branches as something of a “fourth branch” of government.^[10] The modern administrative state finds its origins in the Industrial Revolution, which called forth a more robust regulatory structure to meet the challenges and demands of the new socioeconomic situation.^[11] In recent years, the administrative state has come under criticism from political conservatives, who argue that agencies are not sufficiently democratically accountable in relation to the power they wield. Meanwhile, liberals tend to emphasize the technical expertise of agencies and their greater flexibility in tackling new and complex problems. These trends have shifted over time as political control of the administrative state has shifted.^[12]

Congress creates agencies and defines the scope of their power, but agencies’ position as enforcers of statutes often requires them to interpret those statutes. Agencies must decide upon the circumstances in which a given law applies, and sometimes, Congress will even ask the agency to create its own standards of regulation.^[13] The scope of the law, its clarity, and its specificity determine how much freedom an agency has in interpreting it. For any administrative decision that requires more than direct application of a clear and specific statute, agencies will issue their interpretation in the form of a regulation published in the Federal Register. These regulations are the product of both the agency’s technical expertise and the political orientation of the executive branch.

Generally, the federal judiciary has two pathways for reviewing agency decisions. First, courts can enforce legislation guiding agency regulatory processes. The Administrative Procedure Act (APA), enacted in 1946, sets guidelines for agency action and enumerates the circumstances in which courts may review agency action.^[14] Under the APA, courts generally review the quality of an agency’s regulatory process, ensuring that the agency has gone through the required procedures before promulgating and enforcing a regulation.^[15] Second, courts may determine whether the laws which create regulatory agencies and charge them with certain obligations are themselves constitutional.^[16] Under this second category of legal decisions, courts create and apply a number of doctrines which find their justifications in constitutional or common law principles. The MQD falls under the second category of judicial review, as it relies on a theory of institutional roles in which Congress alone may make important policy choices.

Before the rise of the MQD, courts would most often examine agency regulations under the framework of Chevron v. Natural Resources Defense Council,^[17] often referred to as Chevron deference. Chevron was a 1984 watershed Supreme Court decision wherein the Court adopted a posture of deferring to administrative agency decisions. The decision established a two-step process for judicial review of agency regulations, whose basic purpose is to ask whether an agency’s interpretation is consistent with the legislation that created that particular agency and/or granted it the regulatory power at issue.^[18]  Step One asks whether Congress has spoken to the question at hand, i.e., the object of the regulation. If the legislation is clear and resolves the question, the inquiry ends there. If the legislation is ambiguous, courts must proceed to Step Two. At Step Two, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”^[19] Chevron therefore accommodates legislative ambiguity and provides agencies room to maneuver within the bounds of their respective statutory schemes. Its application tends to result in decisions favorable to agencies, thus allowing the administrative state to chart its own political agenda under the direction of Congress and the President.

Chevron typified an older approach to constitutional theories of institutional roles, as well as to statutory interpretation more broadly. Under Chevron, the judiciary accepts that Congress cannot anticipate every possible situation in which a law might apply. Some of those lingering questions must be resolved in the course of the statute’s everyday application, and agencies surpass courts in both technical expertise and experience with the daily realities of the statute’s application.^[20] Moreover, the judiciary acknowledges that there is often no right answer to the question of “what the law is.”^[21] Chevron allows implementing agencies to participate in the process of answering interpretive questions, both providing an institutional role for administrative states and limiting the judiciary’s ability to interfere ^[22]with that role. As a result, agencies can do things like pursue important environmental regulations, protect vulnerable workers from the effects of deadly disease, and enforce standards for workplace equality that account for the complexities of disability.²² 

Under the MQD, agencies may not be able to do any of these things. As articulated in West Virginia, the MQD operates as a clear statement rule which requires Congress to “speak clearly” if it wishes an agency to answer a question of “vast economic and political significance.”^[23] It thus carves out a special category of cases wherein Chevron no longer applies. Instead of asking whether a statute is ambiguous, the MQD asks whether a regulation is economically and politically significant. The vagueness of this standard of economic and political significance—or “majorness”^[24]—makes it possible to construe that category very broadly, capturing a wide range of agency activity. If the regulation is major, courts must then move to an examination of the statute to determine the regulation’s permissibility. But this analysis does not look like statutory interpretation under Chevron. Instead of asking whether the regulation can be sustained through a reasonable reading of the statute, courts must ask whether the legislation explicitly approves the specific regulation. If the statute is ambiguous, the regulation is impermissible. The MQD thus requires an approach opposite to Chevron; a finding of ambiguity under Chevron tips the scales towards the agency, whereas a finding of ambiguity under the MQD requires courts to invalidate the agency regulation. Chevron has demonstrated that courts tend to find statutory ambiguity more often than not,^[25] which makes it likely that most regulations of “economic and political significance” will be invalidated by the MQD. The MQD thus reduces agencies’ institutional role by limiting the degree to which they can act independently. Moreover, by rejecting agency interpretations of ambiguous laws, the MQD places the power of statutory interpretation entirely in the hands of the judiciary.  

B. Political Implications of the MQD

My second reason for examining the MQD is its potential for vast political consequences, resulting from its ability to invalidate a wide variety of administrative regulations. The MQD disturbs a previous judicial doctrine which, by allocating a role for the administrative state, allowed agencies to grow into integral pieces of American government. However one feels about that plethora of agencies, the American state would look very different without the Food and Drug Administration (“FDA”) regulating food and drug safety and the Equal Employment Opportunity Commission preventing employers from discriminating against their employees. Limiting agency capacity will remove a tool of legislative construction from Congress’ arsenal. Such a removal may have deep consequences for government capacity in the context of heightened political polarization.

As Congress becomes more politically polarized, with increasing disagreement and ideological distance between Democrats and Republicans, it tends to rely more on administrative agencies to fill in statutory gaps. Polarized Congresses tend to pass fewer laws, a phenomenon referred to as legislative gridlock.^[26] Polarized Congresses also tend to delegate more implementing authority to regulatory agencies; Sean Farhang has found that “Congress passed an increasing volume of regulatory commands that it entrusted to agencies for implementation” from 1970 to 2008.^[27] Recent decades have seen an increase in administrative delegations in the form of rulemaking and sanctions.^[28] Overall, the trend in polarization is correlated with an increase in administrative authority over statutory implementation, although the effects on agency power depend on the agency’s agenda and the type of authority delegated to it.^[29] This being the case, even if the MQD succeeds in its goal of limiting agencies’ ability to make significant policy changes, Congress will remain polarized for the foreseeable future. Reduced agency authority poses a challenge for legislative productivity, as Congress will face another obstacle in crafting legislation that members of both parties can accept.  

Moreover, as Congress’ legislative capacity decreases, courts’ control over the meaning of law increases because Congress is less likely to override the Court’s statutory interpretations through new legislation. As discussed above, the MQD grants the judiciary greater control over statutory interpretation by reducing agencies’ interpretive powers. Richard Hasen argued as early as 2013 that increasing political polarization is likely to grant the judiciary greater power overall.^[30] When the Court was asked to interpret the Affordable Care Act, “the Justices knew that the Court’s decision on which provisions of the health care law remained valid would likely be the final word.”^[31] Canons of statutory interpretation tend to assume that Congress can and will correct erroneous decisions, and Congress indeed used to do so with regularity. However, the number of legislative overrides, and particularly the number of bipartisan overrides, has steadily decreased since 1970.^[32] Particularly as Congress’ legislative capacity decreases and reliance on administrative agencies increases, both the Supreme Court’s and lower courts’ views on which questions are “major” and whether Congress has “spoken clearly” to those questions will be the final word on the matter. As a result, the MQD affords the judiciary greater control over the nation’s policy agenda both through selective identification of major questions and through the clear statement requirement. It is thus doubtful that the MQD will achieve its ostensible goal of returning important policy questions to the legislative process. Instead, those policy questions may simply be transferred from the administrative state to the judiciary, an institution significantly more insulated from democratic influence than regulatory agencies.

In addition to transferring the leadership of the nation’s policy agenda from regulatory agencies to the judiciary, the MQD risks elevating minority control of politics in a subtler way. Deacon and Litman have written persuasively on the potential for lobbyist groups to artificially produce controversy over a policy issue, thus raising the issue to the status of a “major question” and removing it from the sphere of agency regulation.^[33] The Court’s opinion in West Virginia treats political controversy as a factor in determining majorness: the EPA’s proposed emission regulation “has been the subject of an earnest and profound debate across the country,” indicating that it is a “major question.”^[34] Deacon and Litman observe that the inclusion of this factor may create more opportunities for minority as opposed to majority rule, as it “allows entities to functionally amend statutes through political opposition rather than by doing what would otherwise be required: passing legislation.”^[35] For wealthy political lobbyists who already take advantage of the judicial system to supersede democratic legislation, the MQD may simply be another tool to nullify disfavored regulatory action.^[36] Given the strength of the clear statement rule articulated in West Virginia, getting a court to recognize a regulation as “major” is a simple and effective way to invalidate that regulation. The MQD’s purported purpose is to ensure that “the national government’s power to make the laws that govern us remains . . . with the people’s elected representatives,”^[37] 

II. The MQD: Becoming A Doctrine 

The goal of this paper is to understand how and why the MQD emerged. To that end, I will first ask whether the MQD can be explained through common law legal reasoning. I will use West Virginia to identify sources of legal support for the MQD and ask whether those cases can support the MQD as it now exists. I will argue that the Court in West Virginia built the MQD by extricating particular phrases—“economic and political significance” and “major questions”—from case law, regardless of context and beyond what the original citation can bear. This conclusion leads me to ask why these particular phrases have become the load-bearing support for the MQD, a question I will explore in Parts III and IV. 

A. So-called “Major Questions” Cases 

In his majority opinion in West Virginia, Chief Justice Roberts treats the MQD as a natural accretion of precedent rather than a new doctrine. The Chief Justice stated that the Court had simply created the title “major questions doctrine” to “refer… to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem.”^[38] That identifiable body, according to West Virginia, includes the following cases: FDA v. Brown & Williamson Tobacco Corp.,^[39] Utility Air Regulatory Group v. EPA,^[40] King v. Burwell,^[41] Alabama Association of Realtors v. HHS,^[42] and National Federation of Independent Businesses v. DOL, OSHA.^[43] None of these cases refer to a major questions doctrine or canon.^[44] Rather, each uses the phrase “economic and political significance” to avoid deferring to an agency’s expertise on the matter of statutory interpretation. Tracing “economic and political significance” through these cases, one finds that each case cites either each other or Brown & Williamson when they use this phrase. The modern MQD thus relies on Brown & Williamson for its existence. Indeed, Justice Kagan’s dissent to West Virginia recognized Brown & Williamson as the “key case,”^[45] and scholarship on the MQD also tends to identify Brown & Williamson as the origin of the MQD.^[46] An analysis of Brown & Williamson demonstrates that ordinary legal reasoning alone cannot justify later cases’ extraction of and reliance on the concept of economic and political significance to escape Chevron deference. 

Before turning to Brown & Williamson, I will briefly address another case sometimes identified as the origin of the MQD: MCI Telecommunications v. AT&T. Many of the “major questions” cases listed above cite it to that effect, as do some legal scholars.^[47] However, courts cite Brown & Williamson in support of the MQD more often than they cite MCI,  and citations of MCI largely result from the fact that Justice O’Connor quotes MCI in her opinion in Brown & Williamson. Brown & Williamson is still the key case, but I will take a moment here to explain why the MCI similarly does not support the MQD. In MCI, Justice Scalia concludes in a Chevron Step One analysis that the FCC’s changes to certain rate-filing requirements do not fall within the dictionary definition of the word “modify,” as “modify” encompasses only minor changes and not major ones.^[48] Justice Scalia sees it as “highly unlikely” that Congress would leave rate regulations entirely to agency discretion through such a “subtle device” as the word “modify.”^[49] Justice Scalia emphasizes the significance of the proposed regulation in MCI so as to bolster his statutory interpretation, but courts which rely on MCI to justify the MQD ignore the substance of Justice Scalia’s opinion in favor of out-of-context quotations. The Court in MCI does not displace statutory interpretation in favor of a clear statement rule, unlike the Court in West Virginia. MCI thus does not provide a strong basis of support for the MQD. Brown & Williamson remains the most crucial case for justification of the MQD, and it is worth looking at Brown & Williamson to ask whether it genuinely supports the Court’s holding in West Virginia.  

In Brown & Williamson, the Court determined that the Food, Drug, and Cosmetic Act (“FDCA”) did not give the FDA authority to restrict the sale and advertisement of tobacco products.^[50] Brown & Williamson required complex reasoning from Justice O’Connor, who wrote for the majority. Beginning at Chevron Step One, Justice O’Connor reviewed the plain text of the Act. The FDCA granted the FDA power to regulate “drugs” and “devices,” defined to include “articles . . . intended to affect the structure or any function of the body,” and “an instrument, apparatus, implement, machine, contrivance, . . . or other similar or related article, including any component, part, or accessory, which is . . . intended to affect the structure or any function of the body,” respectively.^[51] While these definitions seemed to clearly cover tobacco products, Justice O’Connor pointed out that “one of the Act's core objectives is to ensure that any product regulated by the FDA is ‘safe’ and ‘effective’ for its intended use.”^[52] The FDA’s rulemaking stated that “tobacco products are unsafe,” “dangerous,” and “cause great pain and suffering from illness.”^[53] However, the FDCA did not allow the FDA to approve unsafe drugs or devices for sale. If tobacco products were “drugs” or “devices,” the FDA would be required to completely remove them from the market. The FDA’s proposed regulation restricted sale and advertisement of tobacco products without banning them, creating an inconsistency between the regulation and the statutory text which put the regulation’s reasonableness into question. Moreover, Justice O’Connor went on to explain, removing tobacco products from the market would be inconsistent with Congress’ overall statutory scheme.

The FDA had disclaimed authority to regulate tobacco products since the FDCA’s enactment in 1938, and against this background, Congress spent several decades developing a separate statutory scheme to regulate tobacco products.^[54] In the 1960s, Congress had considered and rejected several proposals to grant the FDA jurisdiction over tobacco products, and instead enacted the Federal Cigarette Labeling and Advertising Act (“FCLAA”).^[55] The FCLAA “foreclosed the removal of tobacco products from the market” because it required sellers to add cautionary labels to tobacco products without enacting any sort of ban.^[56] Additionally, Congress used the FCLAA and subsequent legislation to counteract multiple agencies’ attempts to regulate tobacco products, indicating the Congress did not want agencies to direct tobacco policy.^[57] This pattern continued throughout the 1970s and 1980s: Congress enacted several tobacco-specific laws during that time period, all of which presumed that tobacco would remain on the market.^[58] The long history of congressional tobacco regulation demonstrated that Congress had “directly spoken to the precise question at issue,” resolving the inquiry at Chevron Step One.^[59] Congress had removed tobacco products from the FDA’s sphere of regulation, so its proposed regulation was invalid.

Cases which cite Brown & Williamson in support of the MQD do not draw on these thirty three pages of statutory interpretation. Instead, they quote two phrases—“economic and political significance” and “major questions”—from the final two pages of Justice O’Connor’s opinion. In this section, Justice O’Connor discusses the theory behind Chevron and affirms that her statutory interpretation comports with its spirit and purpose. She opens with the following paragraph:

Finally, our inquiry into whether Congress has directly spoken to the precise question at issue is shaped, at least in some measure, by the nature of the question presented. Deference under Chevron to an agency’s construction of a statute that it administers is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. . . . In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation. (“A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute's daily administration”).^[60] 

Justice O’Connor went on to explain that this was such an extraordinary case, as it concerned the FDA’s ability to regulate—and potentially criminalize—the entire tobacco industry.

The purpose of this final section is to affirm that Justice O’Connor’s reading of the statutory text is in accordance with the theory behind Chevron. Chevron assumes that, when Congress creates legislation, it is aware that it cannot answer every question that may arise in the course of the statute’s implementation. Therefore, Congress expects agencies to resolve those interstitial questions in their dayto-day operations. Justice O’Connor’s point here is that this assumption did not make sense in the context of the case before her; the FDA’s interpretation of the FDCA was inconsistent with the Act’s purpose, and Congress had constructed an entirely separate set of laws to handle tobacco. Congress clearly did not expect the FDA to resolve questions on tobacco in the course of its implementation of the FDCA. Brown & Williamson, then, did not create an affirmative requirement for courts to examine the majorness of the question at issue. The question of majorness was not necessary for Justice O’Connor to reach her conclusion, which rested wholly on her reading of the statutory scheme.

Even when Justice O’Connor refers to the “economic and political significance” of the FDA’s proposed rule, she repeatedly reiterates its inconsistency with the long history of congressional legislation on tobacco. She writes:

As in MCI, we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion. To find that the FDA has the authority to regulate tobacco products, one must not only adopt an extremely strained understanding of “safety” as it is used throughout the Act— a concept central to the FDCA’s regulatory scheme—but also ignore the plain implication of Congress’ subsequent tobacco-specific legislation. It is therefore clear, based on the FDCA’s overall regulatory scheme and the subsequent tobacco legislation, that Congress has directly spoken to the question at issue and precluded the FDA from regulating tobacco products.^[61] 

The emphasis here is that deferring to the agency would put the FDA in conflict with both the FDCA and Congress’ statutory scheme, a result which Chevron does not require or even encourage. When Justice O’Connor makes note of tobacco’s economic and political significance, she does so in support of her broader point that Congress was aware of the political issue of tobacco products and was actively developing its own tobacco policy. She bolsters this argument by pointing to Congress’ history of tobacco-specific legislation. The legislative history thus indicates that Congress did not implicitly delegate regulation of tobacco products to the FDA.

Although Brown & Williamson was a difficult case which took a broadly purposive approach to an entire set of laws rather than a plain-text approach to the FDCA alone, Justice O’Connor based her opinion on statutory interpretation in Chevron Step One. Brown & Williamson did not establish a clear statement rule akin to the one created by West Virginia. Indeed, the language of this section is notably hesitant and contextualized by the reasoning around it. Although Justice Roberts believes that “the Court could not have been clearer” in Brown & Williamson,^[62] Justice O’Connor qualified her statements with “extraordinary cases” and “may be reason to hesitate,” neither of which suggests a complete moratorium on agencies responding to significant economic and political questions. Instead, Justice O’Connor’s opinion was grounded in the statutory text and did not rest upon concerns of economic and political significance. Chief Justice Robert’s reliance on Brown & Williamson in West Virginia ignores this broader context, focusing on only two sentences out of a total thirty-three pages of Justice O’Connor’s opinion. West Virginia is thus not a faithful reading of Brown & Williamson.  

B. The Court’s Legal Reasoning

The disparities between West Virginia and Brown & Williamson cannot be explained within the bounds of the common law. The basis of the common law system is analogical reasoning, in which judges seek principled consistency with precedent through comparison of the relevant facts of the case before the court to previous cases.^[63] If the case before a court is sufficiently similar factually to a previous case, the court will seek to apply similar reasoning and come to the same conclusion as the previous case. Of course, analogical reasoning is hardly a neat process with clear answers. Analogies are rarely themselves determinative, so courts often engage in creative construction of the law to fill the gaps left by unclear analogies. Nonetheless, one need not have a perfect picture of the common law in mind to recognize that Chief Justice Roberts’ opinion in West Virginia cannot be sustained as a legitimate form of analogical reasoning. Not only does West Virginia rely on facts which were not determinative in Brown & Williamson, it fails to apply similar reasoning to reach its conclusion. At best, West Virginia is an incredibly creative reconstruction of Brown & Williamson; at worst, it is not even a plausible form of common law adjudication.

Reasoning by analogy in West Virginia would have involved a comparison of the facts of that case to the facts of Brown & Williamson, and if they were sufficiently similar, an application of similar reasoning based on the analogous facts. Chief Justice Roberts makes two comparisons between West Virginia and Brown & Williamson. First, he states several times that both cases involve questions of vast economic and political significance. Not only is this a notably vague comparison, but it focuses on a fact of Brown & Williamson which—as I have argued—was not dispositive or even significant in Justice O’Connor’s opinion. Second, Chief Justice Roberts suggests that the cases are similar in that Congress had considered and rejected proposals to enact the proposed regulation through legislation.^[64] But this too is unfaithful to Brown & Williamson, which stated: “We do not rely on Congress’ failure to act—its consideration and rejection of bills that would have given the FDA this authority—in reaching this conclusion.”^[65] Instead, the Brown & Williamson Court based its decision on the fact that Congress had “enacted several statutes addressing” the subject of the FDA’s proposed regulation, thereby creating a “distinct regulatory scheme” which conflicted with that regulation.^[66] Chief Justice Roberts identifies no similar regulatory scheme in West Virginia, nor any statute which directly conflicts with the EPA’s proposed regulation. Instead, the crucial fact for Chief Justice Roberts is simply that the EPA’s regulation would have vast economic and political significance. Even if one agrees with the Chief Justice that economic and political significance should be determinative, it was not among the most important facts in the Brown & Williamson Court’s decision. These disparities render it implausible that Chief Justice Roberts drew his reasoning from Brown & Williamson.

Scholarship on the MQD supports the idea that West Virginia applies a rather different method of reasoning than Brown & Williamson. Deacon and Litman, for instance, identify a number of differences between Brown & Williamson and West Virginia: the displacement of Chevron, the shift from ordinary statutory interpretation to a strong clear statement rule, and the shift from a semantic canon to a substantive canon. Focusing on the issue of statutory interpretation, Deacon and Litman explain that the MQD does not ask courts to “interpret[] the words Congress used in their normal sense.”^[67] Instead, it “requires Congress to specifically list potentially major things an agency might do pursuant to . . . open-ended guidelines.”^[68] Similarly, treating the MQD as a substantive rather than semantic canon means that it protects background constitutional norms rather than simply guiding courts’ analysis of text and grammar.^[69] As a result, the question for the Court is not whether the regulation would have been considered major by the writers of the statute at the time it was written—a more typical method of statutory interpretation—but instead whether the regulation is considered major today.^[70] West Virginia is thus a very different kind of decision from Brown & Williamson, which focused on the meaning of words within the context of Congress’ statutory scheme rather than current political controversy over a statute.  

West Virginia’s decreased emphasis on textual analysis similarly separates it from cases like Utility Air, Burwell, and Alabama Association of Realtors, all of which applied more traditional methods of statutory interpretation to reach their conclusions. Utility Air found an EPA regulation to be “incompatible with the substance of Congress’ regulatory scheme,” rendering the regulation impermissible under Chevron, and then added that the “vast economic and political significance” of the regulation at issue supported its decision.^[71] Similarly, Alabama Association of Realtors found that the statutory text at issue unambiguously conflicted with the CDC’s regulation before adding that the economic and political significance of that regulation “counsel[ed] against the Government’s interpretation.”^[72] Both Utility Air and Alabama Association of Realtors are logically similar to Brown & Williamson. Each case determined the meaning of the statute at issue and then turned to the regulation’s economic and political significance to confirm that statutory interpretation. Somewhat distinctly, Burwell stated that the regulation’s “vast economic and political significance” precluded application of Chevron, but the Court nonetheless determined that the IRS’s reading of a facially ambiguous statute was permissible in context of the broader statutory scheme.^[73] None of these cases barred agencies from answering major questions without clear congressional authorization; instead, each analyzed the language of the statute at hand to determine the precise reach of agency authority. The MQD has displaced this schema of statutory interpretation to create a “get-out-of-text-free card[],” to use the words of Justice Kagan.^[74]

In short, the Court in West Virginia excised certain phrases from the original context of the opinion in which they appeared and then utilized those phrases to justify a new decision which did not comport with the spirit of the opinion it relied upon. That fateful line from FDA v. Brown & Williamson—“we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion”—cannot bear the weight placed upon it when read in context of Justice O’Connor’s opinion. The Court neither relies on substantive comparisons to Brown & Williamson nor employs analogous reasoning to reach its conclusion. The distinctions between West Virginia and preceding cases cannot support an argument that the MQD developed solely through a natural accumulation of decisions in the ordinary common law fashion.

III. Another Doctrinal Shift: The New Deal 

As discussed above, common law legal reasoning alone cannot account for the development of the MQD and its acceptance by the Supreme Court. To understand how this doctrine came to be, one must look to circumstances external to the Court. In the following sections, I will examine the political context which gave rise to the MQD by way of comparison to another sea change in judicial doctrine, namely the Court’s reversal of Lochner and accompanying doctrine during the New Deal period. This comparison will place the political circumstances of the MQD in sharper relief, highlighting the relative weaknesses of the political branches in comparison to the Court. Unlike the 1930s, which were characterized by broad political consensus, 21st century political polarization has provided an opening for the Court to make more aggressive, self-aggrandizing doctrinal moves. But to properly contextualize the current Court’s political ambitions, one must first understand the watershed moment of West Coast Hotel v. Parrish.

A. Setting the Stage

The New Deal broadly refers to the political platform of President Franklin Delano Roosevelt (“FDR”), developed to combat the economic catastrophe of the Great Depression. In the wake of a peak 25% unemployment rate and spiraling price crashes, FDR pursued comprehensive economic reform through dozens of new pieces of legislation. New Deal policies included increased protections for labor unions, minimum wage and maximum hour laws, social insurance programs, and aggressive regulation of anti-competitive business practices. FDR is widely considered one of the most popular political figures in U.S. history; he won a total of four presidential elections—1932, 1936, 1940, and 1944—and built a congressional coalition which could pass legislation with unprecedented frequency. The New Deal introduced a new language of economic common sense to American politics, based not on laissez-faire market ideology but rather on increased federal regulation of the market. Having emphatically proven that a policy of non-interference towards the national economy left open the perpetual risk of economic disaster, the American public generally welcomed this new economic consensus with open arms.^[75]

 With the support of the American public and a capable coalition in Congress, FDR was able to enshrine many of his policy preferences in law. The primary obstacle to achieving his policy goals was the federal judiciary, which at that time was staunchly conservative. The Supreme Court in particular consistently struck down New Deal policies in accordance with a doctrinal orientation known as Lochnerism. Lochner refers to Lochner v. New York, a 1905 Supreme Court case in which the Court found that a New York law prohibiting bakers from working more than ten hours per day violated the Fourteenth Amendment’s guarantee of liberty.^[76] The basic idea of Lochner and ensuing precedent was that the Fourteenth and Fifth Amendments together protected both employers’ and employees’ right to freedom of contract, a freedom which was burdened by regulations placing restrictions on the scope of labor contracts.^[77] Along with its skepticism of labor rights, the Lochner Court adopted a narrow view of the federal government’s ability to regulate the economy under the Commerce Clause, a constitutional provision which grants the federal government power to regulate interstate commerce.^[78] The Lochner Court struck down a variety of economic legislation on the basis that the object of regulation was intrastate rather than interstate commerce. The Court’s approach directly opposed the principal tenets of the New Deal and frustrated FDR’s ability to put his policies into effect.

B. The Switch in Time

The Supreme Court’s decisions and potential judicial reforms were major talking points in the buildup to the 1936 presidential election, and while FDR avoided placing the Court at the center of his campaign, his ultimate plan to get the judiciary in line would not disappoint.^[79] FDR won that election in a landslide, receiving the electoral votes of all but two states and carrying 61% of the popular vote. This broad-based support was reflected in a Congress with seventy-six Democrat Senators and three hundred and thirty-three Democrat House members, most of whom were “keenly conscious that their presence in Washington was due largely to that inspired political leadership which had produced tremendous Democratic majorities throughout the nation”—in other words, the President’s influence.^[80] Considering FDR’s popularity and his struggle with the judiciary, there was a general expectation that FDR would take action against the Court. And the President followed through: two weeks after his inauguration, FDR proposed a plan to increase the number of Supreme Court Justices from nine to fifteen.^[81] This scheme, generally referred to as court-packing, was a brute force method of reversing the trend of the Court’s decisions through an artificially-produced liberal majority. The President’s aggressive approach to the Court indicated that he was neither unwilling nor incapable of imposing severe political consequences on the Court for its rejection of his policies.

FDR’s court-packing plan would ultimately fail, but the critical factor in its loss of political support was the Supreme Court itself.^[82] On March 29, 1937, the Court handed down West Coast Hotel v. Parrish, overturning Adkins v. Children’s Hospital and with it the Lochner-era presumption that minimum wage laws violated the right to freedom of contract.^[83] The decision directly conflicted with Morehead v. New York ex rel. Tipaldo, decided only ten months before West Coast Hotel, wherein the Court had invalidated a New York minimum wage law.^[84] Two weeks after West Coast Hotel, the Court decided NLRB v. Jones & Laughlin Steel, upholding the National Labor Relations Act and adopting a broader view of the Commerce Power so as to allow the federal government to regulate activities affecting interstate commerce, even if those activities were themselves entirely intrastate.^[85] Jones & Laughlin effectively overturned Schechter Poultry, decided less than two years beforehand, in which the Court had taken a more narrow view of which intrastate activities could be regulated under the Commerce Clause. Specifically, Schechter only allowed regulation of commercial activities related to transportation of goods, whereas Jones & Laughlin allowed the federal government to regulate production of goods.^[86] West Coast Hotel and Jones & Laughlin effectively mooted the court-packing scheme, earning them the title of “the switch in time that saved nine.”^[87] 

The switch in time reoriented the Court’s position with respect to the federal government, because it transitioned away from actively intervening to block New Deal legislation and adopted a posture of deference towards the decisions of the political branches. The court-packing scheme, and more broadly the threat of political retribution, threatened the Court’s integrity and power. Whether or not FDR would have actually succeeded in bringing consequences to bear on the judiciary, the Court was keenly aware of the possibility. The Court capitulated to the desires of the political branches to avoid potentially devastating open conflict between the judiciary and the President. One can see this attitude most clearly in the Court’s Commerce Clause jurisprudence, where the reasoning of Jones & Laughlin produced a basic posture of deference to Congress on the matter of interstate commerce. Although the Court made a careful caveat that the Commerce Power did not encompass truly local activities, the import of the decision was that if Congress could demonstrate that an activity affected interstate commerce, Congress could regulate that activity.^[88] Analysis under the Commerce Clause became a question of whether Congress could provide the requisite factual evidence to support its position.

IV.  Comparing The MQD And The New Deal 

In this section, I will compare the differences in the doctrinal shifts and political contexts of West Virginia and West Coast Hotel. I will argue that West Coast Hotel and its associated cases, particularly Wickard v. Filburn,^[89] demonstrate that the Court generally adopted a posture of noninterference and restraint towards New Deal policy. On the other hand, West Virginia signals a judicial shift towards a posture of interference with federal policy, as courts are more likely to strike down administrative decisions. The key difference between West Coast Hotel and West Virginia lies in the political branches’ ability to exert pressure on the Court. The strength of the New Deal regime backed the Court into a corner, whereas current political instability and polarization enables the Court to allocate power to itself through administrative law. The political branches’ relative strength is a critical factor in determining the breadth of doctrinal options open to the Court. 

A. Doctrinal Shifts: Deference vs. Interference

 When the New Deal Court transitioned away from Lochner and towards a broader view of state powers, it essentially adopted a posture of non-interference with federal and state government action. Filburn was the most striking example of this new posture, as the Court allowed the federal government to restrict production of wheat even when that wheat would never exit the home and enter the local marketplace.^[90] Although decided by a differently composed bench than that which decided West Coast Hotel and Jones & Laughlin, the Filburn Court simply brought the logic of Jones & Laughlin to its natural conclusion. Filburn dealt with the 1933 Agricultural Adjustment Act (AAA), which sought to address the downward spiral of wheat prices which had been a driving force behind the Depression. The federal government applied the AAA to personal as well as commercial wheat production because personal production enabled wheat farmers to avoid buying wheat on the market, thus reducing demand for wheat and keeping prices down.^[91] Although the wheat production at issue was entirely intrastate activity, the Court chose to examine the aggregate impact of every wheat farmer who might choose to produce wheat for personal consumption, and on that basis the Court determined that personal wheat production could be regulated as interstate commerce under the Commerce Clause. Filburn demonstrated the late New Deal Court’s hesitancy to push back against the federal government’s assessment of necessary economic regulations. Whereas Lochner-era decisions had broadly constructed individual rights and narrowly constructed interstate commerce to keep the government out of the economy, the new Court policy flipped both logics and broadened the sphere of government action. As a result, the Court was less likely to invalidate legislation or otherwise interfere with federal policy.

By contrast, the MQD represents a shift away from non-interference and towards interference with federal policy. The old regime was one which generally deferred to administrative expertise and more broadly to the executive branch, which tends to set the agenda for administrative regulations. To put a finer point on this, Chevron deference was a doctrine which produced decisions favorable to agencies about three-quarters of the time. Indeed, a 2017 study found that agencies won in 77.4% of cases where circuit courts applied Chevron deference between 2003 and 2013.^[92] Findings of statutory ambiguity were common and skewed cases even more towards agencies; about 70% of Chevron cases went to Step Two, and of those, 93.8% resulted in victories for agencies.^[93] Chevron resulted in victories for agencies not simply because it provided room for multiple reasonable interpretations of a statute, but more broadly because statutes often are ambiguous by their terms. As Congress cannot predict every instance in which a statute will apply, agencies must often determine for themselves what a broadly written piece of legislation requires in each unique circumstance. Chevron deference accepted this situation, and as a result, it produced a posture of non-interference with agency decisions. While Lochner encouraged courts to invalidate federal policy, Chevron discouraged courts from doing so. The MQD upends this posture of deference by requiring courts to invalidate a much wider array of agency regulations. The MQD first requires courts to ask whether a regulation is “major”—indicated by its “economic and political significance”—and then, if the regulation is major, to ask whether Congress has clearly authorized the agency to create that regulation. Majorness is loosely defined, and indeed, it would be difficult for the Court to create any specific definition. Nearly all federal policy could be construed as having “vast economic and political significance” simply by the fact that it affects the entire nation. The Court’s line of Commerce Clause jurisprudence makes this point ironically clear; very few activities have no impact whatsoever on interstate commerce, and quite similarly, very few agency regulations have limited economic and political significance. In an era of interest-group pluralism and political lobbying,^[94] it’s difficult to imagine a policy which lacks a single group or person interested enough to submit a persuasive amicus explaining that policy’s impact on national politics. Courts interested in invalidating agency regulations will have little trouble proceeding to the second step of the MQD.

The MQD upends this posture of deference by requiring courts to invalidate a much wider array of agency regulations. The MQD first requires courts to ask whether a regulation is “major”—indicated by its “economic and political significance”—and then, if the regulation is major, to ask whether Congress has clearly authorized the agency to create that regulation. Majorness is loosely defined, and indeed, it would be difficult for the Court to create any specific definition. Nearly all federal policy could be construed as having “vast economic and political significance” simply by the fact that it affects the entire nation. The Court’s line of Commerce Clause jurisprudence makes this point ironically clear; very few activities have no impact whatsoever on interstate commerce, and quite similarly, very few agency regulations have limited economic and political significance. In an era of interest-group pluralism and political lobbying,⁹⁴ it’s difficult to imagine a policy which lacks a single group or person interested enough to submit a persuasive amicus explaining that policy’s impact on national politics. Courts interested in invalidating agency regulations will have little trouble proceeding to the second step of the MQD.

Unlike with Chevron Step Two, proceeding to the second step of the MQD analysis skews the case against the agency. As Deacon & Litman have argued, the MQD operates as a clear statement rule distinct from Chevron Step One’s textual analysis: “the question is not what the best interpretation of the statute is or even whether it is unambiguous in the normal sense. The question is instead whether the statute speaks with particular clarity.”^[95] This clear statement rule thus raises the bar for a piece of legislation’s specificity, making it more difficult for agencies to claim authority to answer a particular question. Clear statement rules apply with varying degrees of force in disparate lines of precedent, but a clear statement rule can be strong enough to require “unambiguous statutory text targeted at the specific problem.”^[96] The reasoning of West Virginia suggests that the Court intends the MQD to operate with such force. No matter that the Clean Air Act requires the EPA to “determine” the “best system of emission reduction”; the important point for the Court is that the Clean Air Act does not explicitly endorse this system of emission reduction.^[97] Even when a statute authorizes an agency to answer a question for itself, the agency may not come up with an answer that Congress has not spelled out in legislation. The clear statement requirement, combined with the relative ease of identifying majorness, makes it very difficult for agencies not to run afoul of the MQD. The MQD then requires the judiciary to interfere more often with legislative and administrative processes, both by determining what rules are significant and by invalidating a wide array of agency regulations.

 B. Political Contexts: Consensus vs. Polarization

West Coast Hotel and West Virginia both upset stable judicial doctrines, but they were decided in very different political circumstances. Each case’s position in “political time” influenced the choices the Court was free to make. Political time, a term coined by Stephen Skowronek, refers to the rise and fall of political regimes.^[98] A political regime refers to a period of time during which one particular political party “is dominant and sets the agenda for political contest.”^[99] That party will likely win a majority of elections, but more importantly, the base assumptions of their political perspective will be the base assumptions of the nation. During the New Deal regime—lasting from about 1932 to 1980— , increasing government regulations, welfare programs, trade unionism, and civil rights and civil liberties revolutions set the stage for national politics. The subsequent Reagan regime, which followed the New Deal regime, shifted the political baseline from regulation to deregulation, trade unionism to neoliberalism, socialization and welfare to privatization, and civil rights and civil liberties to racial retrenchment.^[100] Over time, political regimes begin to fracture and fall apart, and political opponents increasingly gain traction by challenging the basic assumptions of the previous regime. This conception of political time helps explain why the Roosevelt and Reagan presidencies were so powerful; both the 1932 and 1980 elections represented the culmination of national rejection of the previous regime. The country saw each new President as the symbol of their hopes for change and restoration, lending Roosevelt and Reagan huge political power.  

 Electoral politics and judicial politics do not always neatly cohere. In addition to political time, we can employ the term “judicial time” to describe the cycles of constitutional regimes in the judiciary.^[101] Over the course of judicial time, the basic assumptions which dominate legal reasoning shift and change, but not necessarily at the same time that political regimes rise and fall. Judges’ lifetime tenure means that judicial ideologies tend to outstay their political welcomes, such that judicial time lags behind political time.^[102] Outdated judicial policy was one of FDR’s main challenges during his first term, before multiple Supreme Court Justices retired and allowed him to construct a judiciary more amenable to his political goals. By contrast, the Reagan regime had begun to collapse just as Donald Trump nominated multiple Supreme Court Justices, locking in a majority-conservative Court which may run at cross-purposes with national politics for decades to come. What distinguishes these two doctrinal shifts is their position in judicial time relative to political time. The Court decided West Coast Hotel at the height of the New Deal regime, even before FDR was able to change its composition, whereas the Court decided West Virginia at the tail end of the Reagan regime, even after the nation had seemingly repudiated the politics of Donald Trump.  

The crucial difference between the political contexts of West Coast Hotel and West Virginia is that the Court decided West Coast Hotel in a moment of national consensus, whereas the Court decided West Virginia and a moment of national polarization. As has been discussed, FDR was an incredibly popular President precisely because he represented opposition to a vulnerable political regime.^[103] Congress and the general public demonstrated overwhelming support for FDR’s political agenda in the early days of the New Deal regime. By contrast, recent decades have been characterized by increasing political polarization and distrust of Reagan-era policies, with Donald Trump’s presidential candidacy acting as a catalyst for national division rather than national unity. Nor did the country cohere around Joe Biden with the broad support once granted to FDR. Despite both West Coast Hotel and West Virginia signaling the downfall of one judicial ideology and the rise of another, West Coast Hotel oriented the judiciary in a position of restraint whereas West Virginia oriented the judiciary in a position of activism. One Court unwillingly capitulated to the desires of President Roosevelt, whereas the other Court sought to undermine President Biden’s political agenda at every turn.

 C. Explanations: How Politics Affect the Court’s Power 

There are a few ways to explain why Courts create, adopt, enforce, or reject particular doctrines at particular times. The most common explanation treats the judiciary’s stance as a reflection of its ideological views. As the Court’s composition changes with retirements and nominations, its political slant changes as well. The Court’s views will not always accord with the dominant political party’s views, but a political party will have more opportunities to nominate judges the longer it is in power, and each party will seek to nominate judges whose views align with their own. The judiciary demonstrates its views by emphasizing different principles and canons of legal reasoning at different points in judicial time. Thus, Eskridge and Frickey argued in 1992 that “canons are one means by which the Court expresses the value choices that it is making or strategies it is taking when it interprets statutes (thus, results produce canons). . . . The precise way in which a Court deploys substantive canons of statutory construction reflects an underlying ‘ideology,’ or mix of values and strategies that the Court brings to statutory interpretation.”^[104] Eskridge and Frickey were describing trends in the Burger and early Rehnquist Courts. Presidents Nixon and Reagan had been able to nominate and confirm eight judges between them, producing a Court with very different priorities than the Warren Court which had preceded it. During this time, the Court scrupulously enforced federalism and separation of powers while narrowing many of the broad constitutional protections established by the Warren Court. Eskridge and Frickey observed that the Court did so through selective emphasis of certain canons of interpretation, such as clear statement rules.^[105] This trend was related to the Justices’ ideological views, which were more conservative than those of the Warren Court.

One can apply this ideological understanding of doctrinal shifts to developments in administrative law as well. For instance, trends in the judiciary’s view of Chevron map onto trends in the judiciary’s political alignment or non-alignment with the political branches. Chevron was itself a creation of the Burger Court, and it was popular with conservatives in the 1980s because the Reagan administration controlled the administrative state. As a result, many of the agency regulations Chevron dealt with around the time of its inception interpreted statutes to reduce agency power and authority, consistent with an executive branch policy of reducing the activity of the administrative state.^[106] Indeed, Justice Scalia famously defended Chevron deference in 1989, stating that its principal benefit was making clear to Congress how statutory ambiguities would be resolved.^[107] Over time, liberals took advantage of the administrative state to pursue their own policy goals, most notably with the Obama administration’s immigration and environmental policies.^[108] In response, conservatives turned their ire against Chevron. Thus Chevron came to be associated with liberal judges and legal scholars, whereas conservatives tend to deride the doctrine.^[109] 

The Court’s decision in West Virginia can be read in context of these trends in conservative legal thought, as well as the rise of the conservative movement and the Federalist Society’s growing control over judicial nominations. A decades-long project in and of itself, the conservative legal movement has built a hugely powerful political bloc which exerts control over not only judicial nominations but important political positions, ensuring that the conservative viewpoint retains political power.^[110] In addition to its political power and influence, the conservative legal movement continuously seeks access to the Justices and engages in dialogue with them. Conservative think tanks use law review articles and amicus briefs to provide the Justices with a set of ideas to base their decisions on, as well as feedback and even pushback when a Justice appears to have fallen out of step with the conservative legal movement’s ideological views.^[111] The current conservative Justices therefore hold more extreme views than their predecessors, causing substantial changes in constitutional doctrine across the board.^[112] It is fair to say that a Court of six liberals rather than six conservatives would be unlikely to render a decision like West Virginia, regardless of the political climate. The Court’s ideological views play an undeniably important role in creating shifts in constitutional law.  

However, the ideological explanation is not satisfactory on its own. For one thing, the New Deal Court’s doctrinal flip demonstrates that courts do not always make predictable decisions that align with their ideological stances. Its sudden departure from precedent in West Coast Hotel and Jones & Laughlin is difficult to understand absent the context of the 1936 election. Additionally, the Supreme Court has indicated that its ideological preferences are not the only factor in its decisions. A Court of four Nixon appointees and four Reagan appointees decided in Planned Parenthood v. Casey to reaffirm Roe v. Wade out of concerns for judicial integrity and reputation.^[113] The Court was not able to overturn Roe until the Republican party’s far-right wing, a driving force in polarization, had successfully captured the nomination process and filtered out prospective Justices with more moderate tendencies.^[114] Ideology is thus one of multiple factors influencing a judge’s decision in a particular case; judges may also consider the judiciary’s integrity, reputation, or political power. What we see with West Coast Hotel and West Virginia is two Courts opposed to the ideological views of the executive branch, wherein one Court changed its views to align with those of the President and the other Court simply dug its heels in. One Court adopted a posture of non-interference vis-à-vis the federal government, whereas the other Court granted itself great power over the administrative agenda and, with it, executive branch policy. These Courts’ ideologies played a significant role in their decisions, but they were not the only motivating factor.

 The critical difference between West Coast Hotel and West Virginia is the stability of the political regime each Court found itself opposed to. The unprecedented strength of the Roosevelt administration left the Court with few doctrinal options. Historians can and do debate about whether Roosevelt’s court-packing scheme would ever have been implemented in practice, but the important point is that the Justices were in a position to be aware of FDR’s political power as well as his view of the Court’s decisions.^[115] Knowing that its stance on New Deal policy had been a major talking point during the 1936 election, and knowing that Roosevelt might be willing to do something drastic to get his way, the Court chose to preserve what little power it had left. Lagging behind in political time, the judiciary had become the only real site of resistance to the newly dominant New Deal regime. This position narrowed the breadth of doctrinal positions open to it, ultimately closing off the possibility of making decisions in line with the Court’s own ideological preferences. Continuing to resist New Deal policies might have put the Court in an untenable position, either due to aggressive executive action or legislation limiting the Court’s power.

On the other hand, the current Court has little to fear from either the executive branch or Congress. Whereas West Coast Hotel was decided when the New Deal regime was at the height of its power, West Virginia was handed down during a time of increasing political instability and tension.The current Reagan regime is fracturing, but no opposition regime has acquired broad-based political support. Without strong political power, the political branches are limited in their ability to respond to judicial decisions. As Hasen discusses in End of the Dialogue, the Court is fully aware that it will have the final say on statutory interpretation because Congress is not likely to legislatively override its decision. And beyond Congress’ ability to override judicial decisions is its willingness to do so; a substantial portion of the legislative branch supports the Court’s staunchly conservative ideological agenda. Nor can the executive branch effectively challenge the judiciary without congressional backing, particularly considering that such a move may not be well-received by moderate Democrats. Unlike President Roosevelt, President Biden is unlikely to find strong sources of political support with which to challenge the judiciary, leaving the Court free to take control of the administrative agenda.

This is especially true in light of the fact that polarization in the United States has been asymmetric. Political scholars have recognized that, although the Republican Party has moved further right in recent years, the Democrat Party has remained largely moderate and centrist.^[116] Related to that asymmetric polarization, Fishkin and Pozen have observed a corresponding trend of “asymmetric constitutional hardball.”^[117] Coined by Mark Tushnet, the term “constitutional hardball” refers to “political claims and practices… that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing preconstitutional understandings.”^[118] These claims and practices do not directly violate legal or constitutional doctrine, but rather “break the perceived rules of normal constitutional politics” by flouting “go without saying” constitutional norms and practices.^[119] By playing constitutional hardball, political parties can achieve partisan goals which would have been impossible to achieve within the boundaries of ordinary constitutional practices. Fishkin and Pozen argue that, although both parties have engaged in constitutional hardball, the Republican party does so with greater frequency and intensity. Asymmetric polarization conditions the risks and rewards of constitutional hardball for each party, such that the reward-to-risk ratio of constitutional hardball is higher for the Republican party than it is for the Democrat party. As a result, the Democrat party is less willing to play constitutional hardball in order to achieve its goals vis-à-vis the judiciary. The current political situation is one where polarization limits political power and the party ideologically opposed to the Court is less willing to utilize aggressive tactics to put pressure on the Court. As a result, the Court can anticipate staunch support from the Republican party and only lukewarm rebukes from the Democrat party.  

The Court is aware of the effects of asymmetric polarization, including both the political branches’ decreased power and the Democrats’ unwillingness to play constitutional hardball. This is not simply a matter of speculation; recent goings-on at the Court have made clear that the Justices know they are accountable to no one. The clearest example of the Court’s resistance to congressional oversight is the fallout—or lack thereof—of reporting on Justice Clarence Thomas’s relationship with billionaire Harlan Crow. On April 6, 2023, ProPublica published a report revealing that Justice Thomas had taken cruises on Crow’s yacht, flown on his private jet, and stayed at his private resort, all on Crow’s dime.^[120] 

Further reporting uncovered even more concerning payment records; Crow bought and renovated Justice Thomas’ mother’s home, which she still lives in, and Crow also paid for Justice Thomas’ grandnephew’s private school tuition, a grandnephew whom Justice Thomas has raised as a son.^[121] Crow is “an influential figure in pro-business conservative politics” who “has spent millions on ideological efforts to shape the law and the judiciary.”^[122] These events raise serious questions about Justice Thomas’ impartiality and the judiciary’s institutional integrity, as they suggest that wealthy political activists like Crow are trying to curry favor with the Justices.

Democrats in Congress attempted to respond to these incidents by bringing Chief Justice Roberts before the Senate to discuss ethics issues with the Senators. Senator Dick Durbin, chair of the Senate Judiciary Committee, sent a letter to Chief Justice Roberts on April 20, 2023 requesting that he appear before the Senate. The Chief Justice declined with only a single paragraph of explanation, in which he referenced “separation of powers concerns and the importance of preserving judicial independence” and then stated that Chief Justices rarely testify before the Senate.^[123] Senator Durbin could not subpoena the Chief Justice without a majority on the judiciary committee, which could not be achieved due to Senator Dianne Feinstein’s health-related absences.^[124] Even when Senator Feinstein returned, Democrats did not aggressively pursue the issue of ethics and donations. The Court released an updated code of conduct in November 2023 in a token effort to clean up its public image, which was essentially a truncated restatement of the official code of conduct for federal judges.^[125] This was the Court’s only response to serious allegations of corruption and misconduct: a months-late affirmation that they do abide by ethics principles, so no one should concern themselves with the matter. A differently-composed Congress might have pursued the ethics problem further, but this Congress simply dropped the issue after the Chief Justice rebuffed it. In this situation, the Court can and does ignore Congress when Congress seeks to enforce ordinary constitutional norms of checks and balances.

The episode with Justice Thomas demonstrates that the Court is perfectly aware of the political branches’ limited ability and will to check the Court’s power. As a result, the Court is in a position of greater power with respect to the political branches, enabling power-allocating decisions like West Virginia. While political polarization does not require any particular doctrinal shift, it does enable doctrinal shifts more generally. A hypothetical liberal Court in this same political situation might shift doctrine in a different direction, such as expanding voting rights or limiting the reach of the Second Amendment. It might refrain from shifting doctrine altogether, although it would not be able to slough off the power granted to it by Congress’ limited capacity to respond to its decisions.^[126] Political polarization may not always produce judicial power grabs, but it makes such power grabs possible.

If the political branches could counter the judiciary, decisions like West Virginia would not be quite so consequential. However, neither Congress nor the President has much power to prevent the judiciary from directing the administrative agenda and thereby exerting substantial influence on government capacity more broadly. Knowing that there will be few, if any, political consequences for its actions, the Court is free to pursue its ideological agenda through aggressive rewriting of precedent. This stands in stark contrast to the New Deal Court, which faced down and ultimately capitulated to political consensus. The strength of the political branches relative to the Court sets conditions upon the Court’s ability to exercise its power. Political consensus limits the Court’s ability to challenge executive and legislative power. Political polarization opens up more avenues for the Court to challenge the political branches and thereby amass power to itself.

Conclusion

On January 1, 2024, the Supreme Court heard oral arguments in Loper Bright Enterprises, Inc. v. Raimondo and Relentless, Inc. v. Dept. of Commerce. Together, the two cases raise the question of whether the Court should overturn Chevron. Oral argument indicated that the Court is inclined to do so. As Democrats and Republicans remain as divided as ever, the political branches are not likely to respond if and when the Court overturns Chevron and thereby handicaps the administrative state. The Court’s decisions in Loper and Relentless should come as no surprise; its hostility to Chevron has been clear since West Virginia. It remains to be seen what doctrine the Court will instruct lower courts to apply in place of Chevron for those few regulations which do not speak to questions of vast economic and political significance. Whatever those new instructions are, they are likely to reflect the Court’s broader ideological stance towards agencies—one which encourages lower courts to intervene with federal policy and invalidate agency statutory interpretations more often than before. 

The Court was able to make the dramatic doctrinal turnaround of rejecting Chevron and curtailing administrative action because the political branches are stymied by polarization. Neither ordinary legal reasoning nor the Court’s far-right slant can fully account for the rise of the MQD. The Court’s unhappy capitulation to the executive branch during the New Deal makes clear that the direction of judicial policy is the product of multiple factors, particularly the strength of the political regime to which a Court finds itself opposed. Political consensus produces challenges for Courts opposing the dominant political regime, whereas political polarization can insulate the Court from facing political consequences for its decisions. Absent a new political consensus which revitalizes the political branches and enables them to challenge the judiciary, the Court will retain its power and influence over the administrative agenda. We can expect, after Chevron, that powerful lobbyist groups will act with heightened speed to leverage the MQD and any new anti-regulatory doctrines against disfavored administrative decisions. Many of the United States’ most important political battles will play themselves out in judicial nominations, amicus briefs, and courtrooms, rather than the halls of our legislative branch. 

[1] West Virginia v. EPA, 142 S. Ct. 2587, 2605 (internal citations omitted).

[2] Id. at 2609 (quoting Utility Air, infra note 39, at 324).

[3] See, e.g., Ann Lipton (@AnnMLipton), TWITTER (Jan. 8, 2022, 12:13 PM) https://twitter.com/AnnMLipton/status/1479879008087121920.

[4] West Virginia, supra note 1, at 2641 (Kagan, J., dissenting).

[5] See infra note 76.

[6] See infra note 83.

[7] See infra note 84.

[8] See BURT SOLOMON, FDR V. THE CONSTITUTION: THE COURT-PACKING FIGHT AND THE TRIUMPH OF DEMOCRACY (2009). 

[9] See infra note 39.

[10] See Andrew Wistrich, The Evolving Temporality of Lawmaking, 44 CONN. L. REV. 737, 784 (2012).

[11] See generally STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877–1920 (1982). 

[12] See Balkin, infra note 99.

[13] See, e.g., Clean Air Act, 42 U. S. C. § 7411(a)(1) (requiring the Environmental Protection Agency to regulate power plants by setting a “standard of performance” for their emission of certain air pollutants).

[14] Administrative Procedure Act, 5 U.S.C. §§ 551–559.

[15] See, e.g., United States v. Nova Scotia Food Products Corp., 568 F.2d 240 (2d Cir. 1977); Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015).

[16] While the APA does require courts to review the constitutionality of agency decisions, this line of precedent precedes the enactment of the APA and does not rely on it to reach its conclusions. See, e.g., Schechter Poultry, infra note 86 (holding that the National Industrial Recovery Act of 1933 is an unconstitutional delegation of power from Congress to an executive agency).

[17] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

[18] 18 Id. 

[19] Id. at 843.

[20] Jeremy Kessler & Charles Sabel, The Uncertain Future of Administrative Law, 150(3) DAEDALUS 188, 196 (2021).

[21] Marbury v. Madison, 5 U.S. 137, 177 (1803).

[22] 40 C.F.R. § 230; 42 C.F.R. § 483.80; 29 C.F.R. § 1630.

[23] West Virginia, supra note 1, at 2605.

[24] Deacon & Litman, infra note 33.

[25] Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 MICH. L. REV. 1, 32 (2017). 

[26] NOLAN MCCARTY, POLARIZATION: WHAT EVERYONE NEEDS TO KNOW (2019); Sarah Binder, The Dysfunctional Congress, 18 ANN. REV. POL. SCI. 85 (2015).

[27] Sean Farhang, Legislative Capacity & Administrative Power Under Divided Polarization, 150(3) DEADALUS 49, 56 (2021).

[28] Id. at 55.

[29] Id. at 61.

[30] Richard Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S. CAL. L. REV. 205 (2013).

[31] Id. at 102.

[32] Id. at 138. 

[33] Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 VA. L. REV. 1009 (2023).

[34] West Virginia, supra note 1, at 2614.

[35] Deacon & Litman, supra note 33, at 1057.

[36] See, e.g., Hiroko Tabuchi, A Potentially Huge Supreme Court Case Has a Hidden Conservative Backer, N.Y. TIMES (January 16, 2024), https://www.nytimes.com/2024/01/16/climate/koch-chevron-deference-supreme-court.html.

[37] NFIB, infra note 42, at 668 (Gorsuch, J., concurring).

[38] West Virginia, supra note 1, at 2609.

[39] 529 U.S. 120 (2000).

[40] 573 U.S. 302 (2014)

[41] 576 U.S. 473 (2015).

[42] 141 S. Ct. 2485 (2021).

[43] 142 S. Ct. 661 (2022).

[44] A full discussion of Utility Air, Burwell, and Alabama Ass’n of Realtors is beyond the scope of this Thesis, but see infra pages 22–23 for a brief explanation of their differences from West Virginia. NFIB v. OSHA closely mimics West Virginia in its reasoning, but was decided by the same Court only five months before and can thus be considered part of the same doctrinal event as West Virginia. The choice to discuss only West Virginia is a methodological one. West Virginia is a lengthier opinion which explicitly names the MQD and renders that new doctrine binding on lower courts, and as such allows for fuller analysis of the MQD and its potential sources of precedential support.

[45] West Virginia, supra note 1, at 2634 (Kagan, J., dissenting).

[46] Deacon & Litman, supra note 33; Blake Emerson, Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, 102 MINN. L. REV. 2019 (2018); Allison Orr Larsen, Becoming a Doctrine, 76 FLA. L. REV. (forthcoming, 2024).

[47] Kevin Leske, Major Questions about the Major Questions Doctrine, 5 MICH. J. ENVTL. & ADMIN. LAW 479, 485 (2016);

Cass R. Sunstein, There are Two “Major Questions” Doctrines, 73 ADMIN. L. REV. 475, n.73 (2021); Emerson, supra note 46, at 2034.

[48] MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218, 225 (1994): “The word ‘modify’—like a number of other

English words employing the root ‘mod–’ (deriving from the Latin word for ‘measure’), such as ‘moderate,’ ‘modulate,’ ‘modest,’ and ‘modicum’—has a connotation of increment or limitation. Virtually every dictionary we are aware of says that ‘to modify’ means to change moderately or in minor fashion.”

[49] Id. at 231.

[50] Brown & Williamson, supra note 39, at 126. 

[51] Id. (quoting 21 U. S. C. § 321(g)(1)(C)).

[52] Id. at 133.

[53] 53 Id. at 134. 

[54] Id. at 144-46. 

[55] Id. at 147. 

[56] Id. at 137. 

[57] Id. at 149-51. 

[58] Id. at 152-55. 

[59] Id. at 132. 

[60] Id. at 159 (quoting Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 370 (1986)). One might read this quotation as a tongue-in-cheek jab at Justice Breyer, whose dissenting opinion Justice O’Connor sparred with throughout her argument.  

[61] Id. at 160–61.

[62] West Virginia, supra note 1, at 2609.

[63] See generally CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT (1996).

[64] West Virginia, supra note 1, at 2614. 

[65] Brown & Williamson, supra note 39, at 155 (emphasis added).

[66] Id.

[67] Deacon & Litman, supra note 33, at 1039–40.

[68] Id. at 1046.

[69] Id. at 1041.

[70] Id. The Court’s emphasis on current political controversy supports Deacon & Litman’s argument that the MQD creates more opportunities for minority preference to supersede majority rule. 

[71] Utility Air, supra note 40, at 322, 324.

[72] Alabama Ass’n of Realtors, supra note 42, at 2489.

[73] Burwell, supra note 41, at 486.

[74] West Virginia, supra note 1, at 2641 (Kagan, J., dissenting).

[75] See generally IRA KATZNELSON, FEAR ITSELF (2014); SOLOMON, supra note 8; JEFF SHESOL, SUPREME POWER: FRANKLIN ROOSEVELT V. THE SUPREME COURT (2010).

[76] 198 U.S. 45 (1905).

[77] See, e.g., Adkins v. Children’s Hospital, 261 U.S. 525 (1923).

[78] U.S. CONST., art. I, § 8, cl. 3.

[79] SOLOMON, supra note 8.

[80] O. R. Altman, First Session of the Seventy-fifth Congress, January 5, 1937, to August 21, 1937, 6 AM. POL. SCI. REV. 1071 (1937). 

[81] SHESOL, supra note 75, at 3.  

[82] See SOLOMON, supra note 8; SHESOL, supra note 75.

[83] 300 U.S. 379 (1937).

[84] 298 U.S. 587 (1936).

[85] 301 U.S. 1, 37 (1937).

[86] A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Lochner, supra note 76, at 40.

[87] SOLOMON, supra note 8; SHESOL, supra note 75.

[88] Lochner, supra note 76, at 37.

[89] 317 U.S. 111 (1942).

[90] Id.

[91] Id. at 127–28.

[92] Barnett & Walker, supra note 25, at 32.

[93] Id. at 33–34.

[94] THEODORE LOWI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE UNITED STATES (1979).

[95] Deacon & Litman, supra note 33, at 1038.

[96] William Eskridge, Jr. & Philip Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 611–12 (1992) (emphasis added).

[97] West Virginia, supra note 1, at 2614.

[98] STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO GEORGE BUSH 

(1993).

[99] Jack Balkin, Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time, 98 TEX. L. REV. 215, 219 (2019).

[100] Id. at 221.

[101] 101 Id. at 225.

[102] Id.

[103] SKOWRONEK, supra note 98, at 36.

[104] Eskridge & Frickey, supra note 96, at 611–12.

[105] Id. 

[106] Cass R. Sunstein, Chevron as Law, 107 GEO. L. J. 1613, 1633 (2019).

[107] Antonin Scalia, Judicial Deference to Administrative Interpretation of Law, 1989 DUKE L. J. 511, 517.

[108] See, e.g., Deferred Action for Childhood Arrivals, 8 C. F. R. § 236.21–236.25 (2012); Clean Power Plan, 82 Federal Regulations 48035 (2014).

[109] Balkin, supra note 99.

[110] STEPHEN TELES, RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW 

(2008).

[111] AMANDA HOLLIS-BRUSKY, IDEAS WITH CONSEQUENCES: THE FEDERALIST SOCIETY AND THE CONSERVATIVE COUNTERREVOLUTION (2015). 

[112] See, e.g., Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., 138 S. Ct. 2448 (2018); Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022); Carson v. Makin, 142 S. Ct. 1987 (2022). 

[113] U.S. 833 (1992).

[114] See HOLLIS-BRUSKY, supra note 111.

[115] 115 SHESOL, supra note 75, at 9. 

[116] See Nolan McCarty, What We Know and Don’t Know About Our Polarized Politics, WASHINGTON POST (Jan. 8, 2014), http://wapo.st/1ifmRzK.  

[117] Joseph Fishkin & David Pozen, Asymmetric Constitutional Hardball, 118 COLUM. L. REV. 915 (2018).

[118] Mark Tushnet, Constitutional Hardball, 37 J. MARSHALL L. REV. 523 (2004).

[119] Fishkin & Pozen, supra note 117, at 920, 923 (quoting Tushnet, supra note 118).

[120] Joshua Kaplan, Justin Elliott and Alex Mierjeski, Clarence Thomas and the Billionaire, PROPUBLICA (Apr. 6, 2023), https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-l….

[121] Joshua Kaplan, Justin Elliott, and Alex Mierjeski, Billionaire Harlan Crow Bought Property From Clarence Thomas. The Justice Didn’t Disclose the Deal., PROPUBLICA (Apr. 14, 2023), https://www.propublica.org/article/clarence-thomasharlan-crow-real-esta…; Joshua Kaplan, Justin Elliott and Alex Mierjeski, Clarence Thomas Had a Child in Private School. Harlan Crow Paid the Tuition., PROPUBLICA (May 4, 2023), https://www.propublica.org/article/clarencethomas-harlan-crow-private-s….

[122] Kaplan, et al., supra note 120.

[123] Letter from John Roberts, Chief Justice of the United States Supreme Court, to Richard Durbin, United States

Senator (Apr. 25, 2023), https://www.documentcloud.org/documents/23789636-roberts-letter-to-durb….

[124] Martin Pengelly, Democrats condemn Roberts’ refusal to testify over US Supreme Court ethics row, THE GUARDIAN (Apr. 26, 2023), https://www.theguardian.com/law/2023/apr/26/democrats-condemn-roberts-r….

[125] CODE OF CONDUCT FOR JUSTICES OF THE SUPREME COURT OF THE UNITED STATES (U.S. 2023), https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_Novembe…;

[126] See Hasen, supra note 30.

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Barnett, Kent & Christopher J. Walker, Chevron in the Circuit Courts, 116 MICH. L. REV. 1 (2017).

Binder, Sarah, The Dysfunctional Congress, 18 ANN. REV. POL. SCI. 85 (2015).

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Carson v. Makin, 142 S. Ct. 1987 (2022).

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Clean Air Act, 42 U. S. C. § 7411.

Clean Power Plan, 82 Federal Regulations 48035 (2014).

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Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).

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Lipton, Ann (@AnnMLipton), TWITTER (Jan. 8, 2022, 12:13 PM) https://twitter.com/AnnMLipton/status/1479879008087121920.

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Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).

National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration, 142 S. Ct. 661 (2022).

National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

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Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015).

Planned Parenthood v. Casey, 505 U.S. 833 (1992).

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Schechter Poultry v. United States, 295 U.S. 495 (1935).

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Utility Air Regulatory Group v. Environmental Protection Agency, 573 U.S. 302 (2014).

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