A Brutal Supreme Court Session Puts a Generation of Public Protections at Risk

There's no sugarcoating it: over the last two terms, but particularly in the last month, an ideologically-driven Supreme Court majority has issued ruling after ruling that collectively undermine how we protect public health and safety in this country. In a string of 6-3 and 5-4 rulings emerging from deliberately selected cases, this court has targeted decades of precedent and invited further attacks on the safeguards we all rely on.

These aren't the most headline-grabbing, high-profile cases, but for anyone concerned with the government's ability to use scientific evidence and act in the public interest, they're enormously consequential.

An assault on public protections and science-based decisionmaking

Four key rulings that have come out in the past weeks may seem technical and abstract, especially taken in isolation, but together, they're a jackhammer willfully deployed to crack the foundations of protections for public health, the environment, consumers, and workers:

• In their decision in the Loper Bright and Relentless cases, the majority overturned the principle known as "Chevron deference," which was formally established in the 1984 Chevron v NRDC case but had been a standard practice for decades. The principle states that, when the language of a law is ambiguous, experts at federal agencies can interpret it to create rules to implement and enforce the law. The majority in these cases stepped well beyond the narrow questions of the specific cases, and fully overturned that precedent. Their reasoning relies on the questionable claim that judges, rather than subject matter experts, should get to have the final say on how laws are implemented, no matter how critical, novel, or technically complex the substance. It's a huge expansion of the power of courts, at the expense of both Congress and mission-driven federal agencies.
• In the Ohio v EPA case, states sued over an Environmental Protection Agency rule requiring them to consider the effect on other states of air pollution generated in their own state. While the 5-4 decision didn't evaluate the merits of the rule, the Supreme Court ordered the rule to be halted and not enforced while it's being litigated. That new precedent could mean that any new rule might be put on hold by a lawsuit, no matter how frivolous.
• In SEC v Jarkesy, a 6-3 majority undermined federal agencies' ability to enforce laws by issuing fines to individuals or organizations that break those laws. This decision will have a far-reaching impact on dozens of federal administrative agencies that use similar processes and is another example of the Court taking power away from the executive branch agencies and giving it to courts.
• And in the Corner Post case, a 6-3 majority threw out the statute of limitations on when an individual or organization can sue over a rule, by declaring that the countdown starts from the "injury," not the finalization of the rule itself-which means that a newly-formed organization or business is free to sue over a long-existing rule. That eliminates the certainty and stability that are the reason to have a statute of limitations in the first place.

Empowering bad-faith actors

In total, the majority has given any bad-faith actor looking to overturn a rule, no matter how important and well-established, a path to nullify it. A powerful industry lobby just needs to find a lower court judge they can count on to put a halt on a public protection they dislike. And far from being the neutral "umpires" that Chief Justice John Roberts described in his confirmation hearings, many of the judges making these decisions are happy to impose their ideological preferences, essentially taking upon themselves the business of writing law.

To see the consequences, look to Justice Samuel Alito's opinion in last years' Sackett case for just one example: the justice-not, to be clear, a wetlands expert-nonetheless took it upon himself to write an unscientific definition of wetland into the law, one that excluded most actual wetlands. Or look at the lower-court judge Matthew Kasmaryk, who decided unilaterally that the Food and Drug Administration's approval of the drug mifepristone was wrong, overruling the broad scientific consensus about its safety and value. This court's vast expansion of its own role in the regulatory process could lead to a flood of lawsuits against rules new and old.

Industry and ideological groups opposed to public health protections knew full well that these cases would open the door to endless lawsuits and judicial interference with the process of governing-which is why these cases were so amply funded by institutions like the oil industry titan Koch Industries, part of "a yearslong effort to use the judicial system to rewrite environmental law" thanks to what one of the top lawyers fighting public health rules has described as a "judiciary that's receptive to strategically selected and timed legal arguments." The same lawyer bragged that using friendly courts to block regulation is "much more efficient" than trying to win the argument in the public sphere. These powerful interests know exactly what they're doing.

The impacts of these rulings are not in any sense limited to courtrooms. They affect the basic ability to protect clean air and water, ensure safe food and medicine, prevent companies from defrauding consumers or abusing workers, and fight the increasing risk of climate change. Lives are at stake, and the abstract legal language that the Supreme Court's majority uses can't hide the fact that there are real and dangerous outcomes for real people.

Paths forward

These decisions will have long-lasting consequences, but there are still paths forward. Experts at federal agencies should continue to craft rules based on the purpose of the law and the best available scientific evidence, rather than just trying to defensively pre-empt lawsuits. Congress should pass legislation that clearly authorizes agencies to act on threats to public safety, as well as legislation that reins in corporate power, like the Stop Corporate Capture Act, and ensures courts act with modesty, integrity, and a clear sense of their own limited role. States should press forward and use the tools they have to tackle issues that affect public health and safety. And all of us need to pay attention and participate to make sure Congress and federal agencies are acting on behalf of the public, not just industry players and their deep pockets.

Here at the Union of Concerned Scientists, we'll be pushing on every lever available to make sure we can fight for evidence-based policy: organizing scientists and technical experts, pressuring federal agencies, exploring legal options, acting at the state and local levels, and joining with community partners and allies to demand better.

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