It is that time of the season when the Supreme Court issues decisions, a time when, at least recently, it’s been wise to keep a good grip on yourself and on a bottle of very good bourbon whiskey. This is the ultimate ring-and-run exercise among our institutions of government. The justices drop bombs that overturn, say, fifty years of privacy rights for women or more than a hundred years of sensible gun legislation for New Yorkers.
Bruen v. New York was issued on June 23, 2022. Dobbs v. Jackson came along the next day. And then it was off to fish for salmon in Alaska, or take a lovely vacation on the cuff courtesy of the likes of Harlan Crow while the rest of us stood blinking amid the ruins of what we once assumed were permanent things.
So watch out.
We had a nice moment last week when the Court upheld the Consumer Finance Protection Bureau’s financing system against a suit brought by the carrion pickers of the payday loan industry. So what does that portend for the decision in Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo? These are the cases that may determine the future of what is known as the “Chevron deference,” a nearly forty-year-old principle derived from a decision won by environmentalists against the oil leviathan in which it was decided that judges should defer to a federal agency’s reasonable interpretation of ambiguities in its mandate. The case involves two herring fishing companies that bridled when the Commerce Department billed them $700 a day for mandated monitors who would make sure the companies were complying with regulations. But all throughout the corporate world, which definitely includes the various sugar daddies who made nicey-nice with Supreme Court justices, executives prayed to their personal, pinstriped Molochs that Chevron would fall.
What should we read from the tea leaves in the CFPB decision as regards this latter decision that’s still hanging fire? Damned if I know. Consistency has not been high on the Court’s agenda since the carefully cultivated conservative majority took control. Ruling for the fishing industry in these cases would take jurisdiction away from the government experts in fisheries, and mining, and air pollution, and water quality and hand it to...judges. That’s got to be tempting to the carefully manufactured conservative majority. And if Chevron falls, then the CFPB’s victory regarding its financing becomes moot. Judges would control all of the CFPB’s interpretations of its regulations no matter how the bureau is financed. The Fifth Circuit deciding how much mercury we need in our fish? Wonderful.
Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976. He lives near Boston and has three children.
