Last June, Chief Justice John Roberts and Justice Antonin Scalia went at each other over Obamacare. Roberts famously joined with the court’s liberals to uphold most of the health care law, handing the president a victory, while Scalia voted with the court’s conservative bloc to kill the law. In the process, Roberts celebrated judicial restraint, which counsels against striking down acts of Congress, and Scalia mouthed Tea Party talking points, which promote going after federal laws and regulation by any means necessary. Now the two conservative justices are dueling again—only they’ve switched sides.
In City of Arlington, Texas v. FCC, a ruling this week that allows the Federal Communications Commission to trump state and local zoning laws for cellphone towers, it’s Roberts in dissent who’s playing Tea Party darling, while Scalia lectures him on the importance of judicial modesty. Arlington illustrates that while Roberts and Scalia agree about the goal of reining in the federal government, they disagree, sharply, about how to do it. Scalia favors bold strokes such as striking down Obamacare, and Roberts prefers a slower, creeping, case-by-case dismantling of federal power.
The underlying dispute in Arlington is pretty boring. Federal law requires state and local governments to approve or deny an application to site a cellphone tower within a “reasonable period of time,” and the FCC issued rules defining that phrase. The City of Arlington, Texas, challenged the FCC’s authority to make these rules. Scalia, joined by Justice Clarence Thomas and the court’s four liberals, rejected that challenge under longstanding rules that require judges to defer to reasonable judgments made by federal agencies.
What makes the opinions in Arlington catnip for court-watchers is the sharp exchange between Scalia and Roberts over judicial power to check the federal government. Echoing the libertarian canard that “the Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy,’ ” Roberts decried the government for its “thousands of pages of regulations” and agencies such as the FCC for “poking into every nook and cranny of daily life.” Worse yet, he said, the federal government keeps growing and growing, with new agencies—and their “potent brew of executive, legislative, and judicial power”—multiplying each year. Quite remarkably, Roberts’ Exhibit A is Obamacare, never mind that the law owes its existence to him.
Having been thwarted by Roberts in his effort to throw out the ACA entirely, Scalia wasn’t about to join Roberts in his backdoor, incremental approach in Arlington, which, in Scalia’s words, involved “sifting through the entrails of vast statutory schemes.” Scalia also accused Roberts of pushing to overturn or gut Chevron v. Natural Resources Defense Council, a unanimous landmark 1984 decision. Written by progressive stalwart John Paul Stevens, Chevron has gained adherents across the ideological spectrum—including Scalia and Thomas—for its success in reining in judges. Above all, Chevron keeps judges from simply making policy from the bench, instead requiring them to accept the reasonable conclusions of government experts on complicated (and important) issues like climate change, clean water, food and drug safety, and, in this case, the siting of cellphone towers. According to Scalia, Roberts’ approach would replace the relative stability of judges deferring to agencies with the “chaos” of judges trying to second-guess every regulation issued by federal agencies to prevent bureaucratic overreach.
While the Roberts vs. Scalia face-off is mainly about style and tactics, not ideology—they both agree on the goal of reducing the size of the federal government—it’s real and likely to last. For sure they will put aside their differences in many cases, starting in all likelihood with the upcoming ruling in an Alabama county’s challenge to a key part of the Voting Rights Act. Still, the court’s right flank is divided, and that is producing some surprising and important legal victories for the Obama Administration.