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There is no conservative legal movement

Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision

Security fencing outside the Supreme Court in Washington, D.C., June 29, 2022. (Al Drago/Bloomberg)

On the last day of the Supreme Court’s term, in a case called West Virginia v. Environmental Protection Agency, the Court declared that the Clean Air Act does not clearly authorize the EPA to create a Clean Power Plan — in other words, to set standards for emissions from existing power plants with a view to encouraging “generation shifting” of electricity production toward sources that emit less carbon dioxide. If this does not sound like the stuff of great events, it was made so by the court’s approach to the case. Chief Justice John G. Roberts Jr., writing for the majority, announced expressly, for the first time, that the court would apply a “major questions doctrine.” According to the majority, the doctrine holds that in “extraordinary cases” the court will apply a “different approach” than the ordinary legal principles governing the interpretation of statutes. Instead, it will demand clear congressional authorization for agency action that is, in the judges’ view, “highly consequential,” posing questions of “economic and political significance.”

Commentators rushed to discuss the significance of West Virginia v. EPA for the conservative legal movement, to which they assumed the justices in the majority belong, perhaps because the court limited abortion rights and strengthened gun rights in the same term. But that framing rests on an error: In reality, as this case makes clear, there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results. West Virginia v. EPA illustrates that every last methodological tenet professed by the movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters.

The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods for interpreting legal texts. Conservative jurisprudence — again, as advertised — has four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and lauded in the opinions of conservative justices.

It is grimly hilarious, then, that the court’s opinion in West Virginia v. EPA follows none of these methods. It is not an “originalist” opinion. Originalism purports to ground the interpretation of legal texts in the original public meaning as understood by the founding generation, for constitutional provisions, or in the original public meaning of enacted statutes. As Justice Neil M. Gorsuch recently wrote in Bostock v. Clayton County, which recognized sexual orientation and gender identity as protected categories under federal civil rights law, “this Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” In West Virginia v. EPA, however, neither the majority nor Gorsuch’s concurrence shows any interest in the original context or public understanding of the Clean Air Act provisions enacted in 1970 — perhaps because, as the court put it soon afterward in 1976, those provisions were widely understood to create a “drastic remedy.” In West Virginia v. EPA, the original understanding of the relevant provisions is absent without leave.

John Roberts’s self-defeating attempt to make the court appear nonpolitical

The court briefly, and Gorsuch laboriously, tried to ground the major questions doctrine in the separation of powers and the “nondelegation doctrine,” a putative constitutional principle which holds that Congress may not grant rulemaking authority to the executive in excessively broad or discretionary terms. On this view, the major questions doctrine is used to construe statutes narrowly to avoid a potential question of constitutionally invalid delegation. Requiring clear congressional authorization for important agency action, the argument runs, represents an attempt to implement the separation of powers at the level of statutory interpretation rather than constitutional law.

The problem, from an originalist standpoint, is that there is no constitutional question to avoid; the originalist credentials of the nondelegation doctrine are shockingly thin. Careful scholarship has confirmed the thesis that the nondelegation doctrine was essentially nonexistent during the founding era, in which the first Congress made broad delegations to the executive in a variety of areas, including military service, territorial government and relations with Indian tribes.

The doctrine is basically a creation of the Supreme Court in the later 19th century, and even then it did not control the outcomes of cases; the court has only twice in its entire history applied the doctrine as a matter of constitutional law, invalidating the central components of the New Deal’s National Industrial Recovery Act in 1935 — some 150 years after the Constitution’s structural provisions were written. Although Gorsuch’s concurrence tries to blur the nondelegation doctrine’s desperate lack of originalist credentials with a long string of citations to academic works, those arguments mainly eschew historical particulars in favor of abstract constitutional theory, and in the end the facts of the founding era are what they are: In the vast landscape of contemporary documents, total mentions of anything like a nondelegation principle would take up less space than an op-ed. Nondelegation is an invented tradition.

The decision is also not textualist, as Justice Elena Kagan observed in a crushing dissent. Textualism says that the ordinary meaning of statutory text is the law, but the majority‘s statutory analysis is cursory, and that of Gorsuch basically nonexistent. The court briefly claims that the major questions doctrine captures the ordinary understanding of Congress in situations where agency action has “economic and political significance.” (What agency action doesn’t?) But the court itself also makes a point of saying that the doctrine counsels against “a reading of a statute that would, under more ‘ordinary’ circumstances, be upheld.” The only cases in which the doctrine possibly makes a difference arise when the courts believe that a “highly consequential” issue warrants an extraordinary override of ordinary statutory meaning.

The decision is hardly traditionalist. The leading precedent on the major questions doctrine, according to both majority and dissent, held that Congress had not clearly authorized the Food and Drug Administration to regulate nicotine as a drug — a precedent not decided until 2000. This is no venerable maxim or principle of our law; one will search for it in vain in the pages of Blackstone. In historical perspective, it is a recent innovation by justices who believe, doubtless with the utmost sincerity, that Congress has too cavalierly and too generously authorized administrative agencies to regulate corporate America in the name of health, safety, a clean environment and the public welfare generally.

Finally, West Virginia v. EPA is not “restrained” in any possible sense. At the level of procedure, the court decided a case in which, remarkably, no agency rule existed. The Clean Power Plan had been repealed by the Trump administration, and the Biden administration had asked the lower courts not to reinstate it. Nonetheless, the justices felt that there was a sufficient threat that EPA might try to create such a rule in the future. Any more such restraint, and the court will end up dispensing with actual cases and controversies altogether in favor of pronouncing on abstract hypotheticals.

On the merits, the court insists, again and again, that the doctrine applies when cases are “extraordinary.” But this is not only to admit, but indeed to proudly proclaim, that this is a doctrine ungoverned by ordinary legal principles. Some legal doctrines are unpredictable in application; here unpredictability is built into the essence of the doctrine itself. Who knows when the court, or for that matter any one of the nation’s 700 district judges, will deem a case “extraordinary” and shut down a national federal regulatory program? Moreover, despite insisting that major questions cases are extraordinary, the court inconsistently went on to describe them as arising “from all corners of the administrative state” — a clear signal that the court expects its anti-regulatory approach to be routinely invoked in the future. The extraordinary has become ordinary. The doctrine displays the same vagueness of standards that the court finds objectionable, under the nondelegation rubric, when authority is granted to agencies. What is constitutional overreach for unelected bureaucrats in the agencies is constitutional virtue for the unelected bureaucrats on the bench. Whatever this is, judicial restraint it is not.

Judged by any of the methodological precepts professed by the conservative legal movement, West Virginia v. EPA stands condemned. How is this possible? If there is no conservative legal movement, what is there? The answer is not mysterious: There is a libertarian legal movement, a consistent opponent of federal regulation, supported and rationalized by an entrenched network of richly funded, quasi-academic and advocacy institutions — in essence, a resurrection of the Liberty League of the 1930s. As recounted by The Post’s Ruth Marcus in her book “Supreme Ambition,” the aim of the movement was stated outright by former White House counsel Donald McGahn, who played a critical role in the appointments of both Justices Gorsuch and Kavanaugh: “As McGahn … told the Federalist Society, ‘The greatest threat to the rule of law in our modern society is the ever-expanding regulatory state, and the most effective bulwark against that threat is a strong judiciary.’… The emphasis on social conservatism and its associated hot-button issues ended with [former Justice Antonin] Scalia, McGahn said at the first meeting after the election to discuss the justice’s successor. It was now all about regulatory relief. On that score, McGahn said, Scalia ‘wouldn’t make the cut.’ ” The methods associated with Scalia — originalism, textualism, traditionalism and judicial restraint — have apparently also been left on the cutting-room floor.