Populism is no longer limited to just politics; it has also penetrated the courts.
Judicial populism, like the political version, insists there are clear, correct answers to complex, debatable problems and treats disagreement as illegitimate. Judicial populist rhetoric disparages the negotiations and compromises of democratic institutions. Instead, it claims special access to the law’s true meaning. You see it in opinions that denigrate the decisions of legislatures and administrative agencies — the key institutions that mediate disagreements in our democracy.
Last month the Supreme Court heard oral arguments in a seemingly sleepy case that offers a good glimpse into a judicial populist view — and how it could undermine the government’s ability to work effectively.
The case, American Hospital Association v. Becerra, revolves around what appears to be a technocratic disagreement: Hospitals have challenged the government’s Medicare reimbursement calculation system. The challenge could be resolved just by evaluating whether that system complies with the statute’s requirements. It’s entirely possible that the case may be resolved in this way.
But the technocratic point can also open to a broader framework, the Chevron doctrine (named after a 1984 case). The Chevron doctrine instructs courts to give agencies significant leeway in interpreting the laws they carry out. Most laws identify problems but not specific solutions. Instead, Congress delegates authority to a specialized agency to figure out how to achieve the law’s broad goals.
Chevron directs courts to overturn an agency’s interpretation of an ambiguous legal provision only if it is unreasonable, which has always been a high bar.
This relationship between Congress and government agencies gives our democratic institutions a way to negotiate among different interests and views to make provisional, reasonably justifiable decisions.
A number of amicus briefs in the American Hospital Association case claim that this system improperly transfers Congress’s lawmaking powers to agencies and sidelines courts and that it leads to arbitrary, overweening bureaucratic power. At oral arguments, Justices Samuel Alito and Clarence Thomas pressed the plaintiff’s lawyer by asking if Chevron should be overruled, despite the plaintiff’s position that doing so was unnecessary to decide the case. Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh also made comments suggesting that Chevronshould be curtailed.
Back when presidential administrations reliably worked to scale back government constraints on corporations, Chevron deference was actually a favorite of conservative Supreme Court justices. As this dynamic has changed, one conservative justice after another has expressed doubts about letting agencies administer the laws Congress entrusts to them.
Eliminating the Chevron doctrine, though, would not return power to Congress. It would instead transfer power from agencies, which are responsible for bringing Congress’s laws to life, to courts. This move reflects an effort to deconstruct our regulatory state, making it harder for administrative agencies to solve the problems Congress identifies.
This judicial populist view of government imagines a strict separation between law and politics. It elevates the president, who is selected in a nationwide election, to embody the people’s will and rule over the political sphere with little interference. The Supreme Court, with its power to say what the law is, rules over the legal one.
Note what this vision leaves out: legislatures and agencies, our primary institutions for considering divergent interests and views, mediating disputes and reaching compromises key to democratic governance. Agencies are required to provide opportunities for public participation, respond to significant comments, and justify their decisions, which a court can overturn for being legally impermissible or simply arbitrary. These are much stronger strictures than those that constrain our courts or even our legislatures.
Eliminating Chevron would fit hand in glove with judicial populism. A judicial populist opinion might cast bureaucrats as arrogant and impervious to the voice of the people. Of course, regulations often govern the relations of different social groups and can even protect the interests of some people (like consumers or employees) from the domination of others (like the financial industry or employers).
Instead of acknowledging that regulatory statutes are purposely broad to allow different interpretations to emerge through discussions over time, a judicial populist approach would hold that there is one true meaning to the law — a meaning courts get to announce once and for all.
That is why judicial populist rhetoric pervades textualism and originalism, theories of legal interpretation that insist that they alone can divine a law’s one true meaning and argue against considering its wider social contexts or effects.
Those who are explicit about the choices they make are then easily derided as activists. For instance, in a 2017 case, Chief Justice John Roberts questioned whether it would be legitimate for the court to limit partisan gerrymandering. After all, that would mean that the court itself “will have to decide in every case whether the Democrats win or the Republicans win.” He implied that the less activist option was not to intervene. Yet if the status quo violates the rule of law and obstructs equal political participation, then not intervening is itself an important policy choice.
Similarly, in oral arguments in Dobbs v. Jackson Women’s Health Organization (concerning a Mississippi law that would ban most abortions after 15 weeks of pregnancy), Justice Kavanaugh repeatedly suggested that overturning precedents recognizing the right to terminate a pregnancy would be the court’s most neutral option because the Constitution is neutral on abortion. But changing a half-century status quo is hardly neutral; in fact, there is no neutral option here.
Judicial populism does not inherently lean left or right. In law as in politics, populist rhetoric is not necessarily a program for achieving substantive policy outcomes. It is a way of justifying the exercise of power without accounting for its real-world effects.
The Chevron doctrine provides a useful guide for an anti-populist approach to judging. This approach, which we call democratic judging to emphasize its place in our republican system of government, embraces pluralism in both perspective and method. Public officials like judges should recognize that legal issues are often subject to reasonable disagreement by a diverse populace. They should provide persuasive justifications for their decisions, striving to reach conclusions that could be accepted by people with competing views. This includes acknowledging that many laws are ambiguous and recognizing Congress’s authority to delegate policymaking responsibility to agencies.
Democratic judging also recognizes that popular sovereignty is exercised through democratic institutions. This means that courts should be interested in how members of Congress think statutes will work, just as agencies should be required to follow clear congressional instructions.
Finally, democratic judging recognizes that deliberating over the meaning of laws is part of how courts participate in the democratic process. Using some preferred method of interpretation to yield an implausibly unequivocal correct answer is not enough. We should expect judges to give us reasons to agree that their interpretation is the best one for society.
Anya Bernstein is a law professor at the State University of New York’s University at Buffalo School of Law. Glen Staszewski is a law professor at Michigan State University.
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