I have noticed some curiosities in concurring and dissenting opinions in Supreme Court cases this term, and will remark on a few.
In Decker v. Northwest Environmental Defense Center, the Supreme Court upheld an interpretation by the Environmental Protection Agency of one of the agency’s own regulations, saying that “deference is accorded” to any agency’s interpretation of its regulations. Justice Antonin Scalia dissented, saying that to defer to an agency’s interpretation of its own regulations “violate[s] a fundamental principle of separation of powers—that the power to write a law and the power to interpret it cannot rest in the same hands.” Scalia’s concern is that the agency will issue a vague regulation, intending to alter it by interpretation, thereby avoiding the required procedures (such as notice of a proposed regulation, and an opportunity for people who may be affected by it to comment).
That is a valid concern, but it doesn’t justify a blanket refusal to grant some deference, some leeway, to agency interpretations of their own regulations. The regulation may deal with a highly technical matter that the agency understands better than a court would; its interpretation may be in the nature of explanation and clarification rather than alteration. Scalia proposes that in all cases in which an agency’s interpretation of its own regulation is challenged, the reviewing court should resolve the challenge “by using the familiar tools of textual interpretation.” Those tools are notably unreliable, especially when dealing with a technical regulation. In Decker, the regulation concerned storm water runoff from logging roads.
Note, too, that the “fundamental principle” (“that the power to write a law and the power to interpret it cannot rest in the same hands”) is regularly ignored in judicial decisions joined or authored by Justice Scalia. Courts “write law” whenever they create or alter common law doctrines, and, realistically the Supreme Court writes law when it interprets the brief, frequently enigmatic, and defenseless text of the Constitution. And having written the law, courts feel free to alter it in later cases. So why not agencies, unless they are circumventing procedures designed to make regulations more deliberate and circumspect?
The opinion I’ve just been discussing has a faint echo in Justice Scalia’s separate opinion in the court’s decision in the gene-patenting, case, Association for Molecular Pathology v. Myriad Genetics, Inc., decided June 13. His opinion is short; here it is in full:
“I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.”
Part I-A of the majority opinion attempts a brief explanation of the basics of genetic biology. It is dense with scientific jargon and would be largely unintelligible to a nonscientist unwilling to look up the terms and maybe consult an elementary textbook on genetics. One might expect a judge to be willing to make the rather modest investment in time and intellectual effort required to puzzle out the majority’s description. Yet some commentators, rather than criticizing Scalia for being unwilling to do so, have commended him for candor in acknowledging his scientific ignorance.
But if Justice Scalia was unwilling to make the necessary effort to understand the discussion of genetics in the majority opinion, how was he able to understand the discussion of genetics in the lower-court opinions or the friend-of-the-court briefs submitted by experts such as James Watson, the co-discoverer of the double helix, the foundation of modern genetic theory? I have dipped into what Scalia calls the “expert” briefs, and their discussions of genetics tend to be as technical as the most technical parts of the majority opinion. So if Scalia understood those discussions, why wouldn’t that enable him to understand the discussion of genetics in the majority opinion? If he didn’t understand the briefs, on what basis could he join the decision?
Although Scalia may be the extreme case, the justices of the Supreme Court (Justice Breyer may be the only exception), and federal judges generally (state judges as well), tend to be uncomfortable with science and technology. Scalia’s discomfort with biochemistry seems of a piece with his embrace of “familiar tools of textual interpretation”—familiar to judges because the tools do not require any scientific understanding. But neither can they replace a willingness to learn a bit of science, at least.
I am done picking on Justice Scalia. For I turn now to a dissent by Chief Justice Roberts from a majority opinion by—Justice Scalia. The case is City of Arlington v. FCC, which Emily referred to in her first post. The issue was the scope of the FCC’s interpretation of a federal statute (as distinct from the agency’s interpretation of its own regulations, of which, as we know, Scalia disapproves). Roberts’ opinion begins with a long lament about the growth of federal bureaucracy. “The Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities. … And the federal bureaucracy continues to grow. … It is the ‘headless fourth branch of government’ ”—“headless” because of its “practical independence.” “The danger posed by the growing power of the administrative state cannot be dismissed … with hundreds of federal agencies poking into every nook and cranny of daily life.”
I said in my first contribution to this discussion that it is inevitable and not to be regretted that many cases will be decided on the basis of practical considerations, emotions, concerns, and so forth (or in the famous words of Oliver Wendell Holmes, “the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men”) that are remote from the orthodox materials of judicial decision making. But these intuitions, etc., ought to have some articulable factual basis. In the wake of deregulation, and against the background of the unprecedented freedom that modern Americans enjoy from government regulation (think of gun rights and sexual freedom, unlimited spending by interest groups on political campaigns, and even freedom from speaking grammatically or dressing respectably), it seems hardly the case that government has invaded “every nook and cranny of daily life.” Chief Justice Roberts obviously feels deeply about government’s growth beyond anything envisaged more than two centuries ago. But he offers no evidence to support his vision of metastatic government.
In fairness to all the justices, I should emphasize that I am throwing a few darts rather than attempting a balanced assessment of the Supreme Court’s performance in the current term. But as William Blake said, “Damn braces: Bless relaxes.”
