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Friday, August 12, 2022

Opinion | The Supreme Court’s right-wing revolution isn’t slowing a bit

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Having already invalidated gun restrictions in liberal states and struck down Roe v. Wade, the Supreme Court on Monday took a giant step back toward the days of public-school-sponsored Christian prayer. It ruled in favor of a high school football coach who held prayers at the 50-yard line after games.

Which leaves one more major case to be decided in this term. And it could be a blockbuster, giving yet another part of the conservative coalition a long-sought victory.

The decision in that case, West Virginia v. Environmental Protection Agency, will likely come down later this week. Just as the court satisfied the long-held desires of gun advocates and antiabortion activists, this case could be a gift not just to industries hoping to spew more pollution into the air, but also to every antigovernment radical dreaming about the day the federal government sees its ability to address profound national problems cut off at the knees.

Conservatives would like us to see this eruption of right-wing policymaking from the Supreme Court as merely the orderly process of jurisprudence. Complex cases come before the justices, who then examine them in light of their deep knowledge of the Constitution and the law to arrive at a reasoned decision.

That perception would be gravely mistaken. What’s actually playing out is a highly coordinated political strategy designed and executed by three groups: Republican politicians, conservative activists and Republican-appointed judges. The result is nothing less than a revolution.

West Virginia v. EPA is nominally about an extended back-and-forth over the Clean Power Plan, a set of rules adopted during the Obama administration. But the larger issue the case addresses is how much authority an agency such as the EPA has to regulate — in this instance, how much it can regulate the greenhouse gas emissions that worsen climate change.

Here’s how complicated legislation such as the Clean Air Act or the Affordable Care Act generally works: Congress writes a law, then gives authority to executive agencies to implement all the details. The legislative text can’t lay out every last technicality and every last question that will ever come up in the future, so agency experts have to be able to decide what the law requires. As part of the Clean Air Act’s requirements to limit harmful emissions, the EPA created the Clean Power Plan to force power plants to bring down those emissions.

The CPP never actually went into effect. It was halted by the courts, then the Trump administration abandoned it, then the Biden administration declined to bring it back. But the justices still chose to take this case even though the central question is moot.

That’s likely because the conservatives on the court are eager to redefine the authority of the EPA and the federal government more generally. One vehicle they’re using is the “major questions doctrine,” which says it’s fine for agencies to decide minor questions about how a law should be implemented, but if there’s something really consequential, an agency can’t go where Congress hasn’t specifically and explicitly ordered it.

That might sound reasonable enough, but the trouble is that, like many recently invented doctrines beloved by the court’s conservatives, the major-questions doctrine is infinitely flexible. Where’s the line between a major question and a minor question? Wherever the conservative majority wants to draw it. In practice, the court’s conservatives can just forbid agencies from carrying out any regulatory activity they don’t like, on the grounds that it’s too “major.”

We don’t yet know how far they’ll go in this case. But it has to be understood in the context of a Congress that has been rendered almost completely incapable of passing ambitious legislation, which is just how Republicans want it.

It’s nearly impossible to imagine Congress passing something like the Clean Air Act or even the Affordable Care Act today, since the country is closely divided and Republicans have so effectively engineered minority rule that allows them to stop nearly everything they don’t like.

So now, the Supreme Court is reaching back to eviscerate the most important laws protecting the rights, health and welfare of Americans. The conservative justices already did it with the Voting Rights Act, which has lost almost all its meaning after being repeatedly hacked away by this court, and now they’re poised to do it with the Clean Air Act.

This is part of a project conservatives call the “deconstruction of the administrative state,” dismantling the government’s ability to protect citizens and solve problems. This project has advocates in all three sectors — elected officials, activists and judges (none of whom is more committed to it than Justice Neil M. Gorsuch).

Assume for a moment that West Virginia v. EPA will go at least some distance down that road, and think about how dramatically the court’s conservative majority will have moved to alter American life in just the past week. More guns brought to more public places. Abortion outlawed in much of the country. Christian prayer back in public schools. The federal government’s ability to address climate change undermined.

For decades, conservatives told each other that nothing was more important than capturing the Supreme Court. If they could do that, it wouldn’t matter if the public supported their agenda; anything would be possible.

They were right. And now their revolution is upon us.


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