Run With the Pack

 I'm not referring to the Bad Company song.

The last attempt to expand the Supreme Court was made in 1937, when President Franklin Roosevelt sent a bill to Congress that, according to a formula encouraging but not requiring Supreme Court justices to retire once reaching a certain age, would allow the President to appoint six additional justices.  Roosevelt tried unsuccessfully to expand the Court to appoint enough justices to counterbalance the conservative majority under Chief Justice Charles Evans Hughes, which had overturned various New Deal programs.  Ironically, Roosevelt ended up appointing justices for all nine seats, including the promotion of Associate Justice Harlan Fiske Stone to replace Chief Justice Hughes, and Hugo Black - who served into the early 1970s - was his first appointment.  Black was appointed a few months after the Court-packing effort failed.

Yeah, well, its time to revisit the idea again.

The current Supreme Court demonstrated that it is all about power and not about jurisprudence.  Its idea of originalism is being taken to the extreme as the conservative majority has been overturning precedents they feel were wrongly decided because the specifics in those precedents are not reflected in the text of the Constitution.  The conservatives advocate judicial restraint but have shown no restraint in overturning decisions they felt were overreaches.  You don't correct what you perceive to be overreach with overreach of your own.

As we're waiting for the final rulings from the Courts 2023-24 term (including the Trump immunity decision) tomorrow, I could go on and on and on and on until I run out of bandwidth about the flurry of its most recent decisions, but I should focus on the overturning of the Chevron principle, which was a unanimous Supreme Court ruling in the mid-1980s declaring that agencies, not courts, should decide the ambiguities in government regulations.  It was a victory for Chevron, the oil company that brought the suit before the Court, when lower courts had tried to set the standards for how Environmental Protection Agency regulations should be administered to Chevron's detriment in extracting oil from the earth.  Anne Burford, the pro-business EPA administrator that President Ronald Reagan had installed in 1981, agreed that the courts should not tell agencies how to do their jobs - and her agency, at least, was accused of doing its job more to help business than people.

As it turned out, the Chevron principle worked out wonderfully, for it allowed career agency workers - civil-service employees who did not answer to presidential administrations - to uphold the spirit of regulations and statutes even when a presidential administration did not.  Supreme Court Justice Antonin Scalia thought the decision was prudent on the issue of resolving ambiguous rules because it would curtail the power of federal judges who would overreach to threaten private interests based on personal politics and not the law.

Justice Scalia, for all of his faults, was largely a man of integrity and a serious legal scholar - that's why he was unanimously confirmed by the Senate in 1986 with one member absent.  He was not a hack like today's conservative jurists.  They overturned the Chevron ruling with the three liberal justices in dissent.  Federal agencies, Chief Justice John Roberts wrote, "have no special competence in resolving statutory ambiguities. Courts do." That may be, but federal agencies do have special competence in the areas of expertise that statutes govern.  Anne Burford certainly would have agreed with that, saying of criticism of her handling of the job of EPA administrator, "Nobody can be that wrong, all that much, all the time." 

Justice Neil Gorsuch agreed with Chief Justice Roberts, writing in concurrence that this ruling "returns judges to interpretive rules that have guided federal courts since the Nation's founding."  It is extremely significant that Justice Gorsuch would side with Roberts and would not have sided with Scalia, whose seat he took, and especially not with Anne Burford, who died in 2004, because, well, before Burford married her second husband in 1983, she went by her first husband's name - Gorsuch.

Yes, Neil Gorsuch is the son of Anne Burford.  

The little snot.

Ironically, Gorsuch himself turned out to be the poster boy for why the Chevron ruling that Scalia and, later, generations of environmentalists championed was actually a good idea.  In writing in favor of pausing a Biden Administration program to curb smog being generated in one state and wafting over another, he confused nitrogen oxide, a harmful gas, with nitrous oxide, a harmless gas.  Justice Gorsuch clearly demonstrated that judges are not the ones who should be resolving ambiguous text in federal statutes. He also demonstrated with equal clarity that he's as dumb as the President who appointed his mother to run the EPA.  Campaigning for the Presidency in 1980, Ronald Reagan also confused the two similar-sounding gases with each other and based on his confusion the suggestion that trees caused more pollution than cars.  

Ladies and gentlemen, here's the only Sequoia that ever caused more pollution than my VW!

House Democratic leader Hakeem Jeffries lamented that, until the reversal is reversed,  Congress will have to write more clear government regulations less prone to ambiguity and multiple interpretations.  The only problem is that Congress keeps demonstrating its inability to do so.

And that's why we have to run with the idea of packing the Court.

And if we don't, I'm leaving here.  You won't even see me, no, no . . . for dust. 

Movin' on . . . movin' out . . .