We’re near the end of March, the month of basketball madness, and it seems like a distinctively anti-agency mood has taken hold at the Supreme Court. This assertion is both more and less than it may appear. It is more because the mood I have in mind has arguably been building up for several years. And it is less because a mood can pass uneventfully, without prompting a major decision. Still, as March Madness wraps up, it seems a good time to take stock of recent events.
Earlier this month, Justice Thomas exhibited a dramatically anti-agency attitude in his separate opinion
Comments
Don’t forget the Thomas dissent in Hargis that argues administrative preclusion is unconstitutional. Anyway, first, I think this anti-agency mood is entirely limited to the conservative wing of the Court – the only thing I can think of on the left wing of the Court to point to is a couple of recent Sotomayor dissents in Chevron cases, Scialabba and Lawson, the latter of which contains a fairly broad reading of Mead on a couple fairly arcane points that’s arguably inconsistent with her own join in City of Arlington. (It is joined by Kennedy and Alito – no surprise there.) Second, I suspect that this anti-agency mood, which you also see in the conservative legal establishment more generally these days (in King, in immigration litigation, in countless Fed Soc discussion panels, in some scholarship) is largely a function of who’s in office, but also a function of some less contingent currents in conservative and originalist thought.
Posted by: Asher | Mar 30, 2015 5:16:39 PM
I don’t mean to quibble with the post, but what does all this have to do with basketball or March madness? Just wondering what this could possibly mean (“Still, as March Madness wraps up, it seems a good time to take stock of recent events…”), and what other sporting events might be a good reason to stop and ponder macro trends in SCOTUS decisionmaking.
Posted by: Moody | Mar 30, 2015 2:34:00 PM