The Volokh Conspiracy
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The Goal Of The "Architects of the Supreme Court" Was Always Overruling Chevron, and not Overruling Roe
McConnell: "Dismantling the administrative state and empowering people who are actually elected to make decisions has been the motivating force" for nearly every "Federalist Society-type lawyer."
The New York Times published a revealing, but not surprising, survey of how the three Trump appointees to the Supreme Court came to be. The article makes crystal clear that the priority of Don McGahn, the White House Counsel, and Senator Mitch McConnell, was always the administrative state, and not social issues like abortion.
While much of the attention to the conservative-dominated court has been about the sweeping decisions it has made to roll back abortion rights and now greatly expand presidential immunity, that was never the main goal for the architects of the effort to pull the judiciary to the right.
For those who led the drive to place Justice Gorsuch and two other conservatives on the court during the Trump administration, a sweeping series of rulings by the Supreme Court this year that shrank the power of federal agencies was the true victory. Their longtime target, the so-called administrative state, has been beaten back with the overturning of the 40-year-old Chevron doctrine and a flurry of other decisions aimed at reining in federal government reach — just as they envisioned it.
McGahn acknowledges that Chevron was always the primary objective:
"None of this was an accident," Mr. McGahn, a partner at Jones Day, said in an interview about the court's landmark rulings on administrative law — an arcane area but one that was a cornerstone of his campaign to place jurists skeptical of federal power on the bench. "It was a way to corral the runaway bureaucracy to get judges in place who were actually going to read the law as it was written."
And McConnell adds that these administrative law cases were the primary motivation for FedSoc lawyers, and not social cases:
Limiting the power of federal officials was a longstanding goal of members of the Federalist Society, the conservative group seen as an incubator for the type of judges that Mr. McGahn and others sought when they moved to quickly populate the courts with conservative jurists after Mr. Trump's election.
"Dismantling the administrative state and empowering people who are actually elected to make decisions has been the motivating force" for nearly every "Federalist Society-type lawyer," Senator Mitch McConnell, the Kentucky Republican and minority leader, said in an interview. . . .
"I think the left thought that all we ever talked about was Roe v. Wade," Mr. McConnell said. "Frankly, I can't even remember it coming up. This was the unifying issue," he said of the attempt to rein in federal agencies.
McConnell is largely correct. After the 2021 Federalist Society Lawyer's Convention, I wrote about the split among members with regard to abortion. The old guard were fixated on issues like Chevron, while the younger members realized that overruling Roe was on the horizon. In hindsight, Dobbs has been an unmitigated disaster for Republican politicians--no wonder McConnell and others did not pursue that cause. They knew what would happen when the dog finally caught its tail. But McConnell is correct that Gorsuch and Kavanaugh were not selected for their views on abortion.
How did McGahn look for potential justices? Well, for at least two of the nominees, he looked to their records:
Mr. McGahn had first grown leery of the extent of agency regulatory power during his own stint as a member of the Federal Election Commission. When he became White House counsel for Mr. Trump, he played a central role in vetting candidates for the Supreme Court and recommending them to the new president.
He searched for potential nominees who had demonstrated a zeal for challenging the reach of federal agencies and backed it up with strong legal arguments and decisions.
"It's not enough to say the right things in public speeches," Mr. McGahn said in November 2017 remarks to the Federalist Society, as he laid out his strategy for what had come to be known as deconstructing the administrative state. "Judges must apply those principles in concrete cases."
In 2015, Randy Barnett and I wrote a guide for picking Supreme Court justices in the Weekly Standard (obm). We explained that "paper trails are an asset, not a disqualification." It is not enough for a friend to say that "she is solid." Show me.
Let's start with Justice Gorsuch. I've noted several times over the years that Gorsuch did not make it onto the first Trump list. Before the 2016, I knew very little about Judge Gorsuch. I recall that he was in the majority in the Hobby Lobby decision, but I don't remember meeting him until the 2016 Federalist Society National Lawyers Convention, which followed the presidential election. Around that same time, Gorsuch suddenly jumped to the lead in my FantasySCOTUS prediction market.
The Times explains what moved Gorsuch from off-the-wall to on-the-wall: an opinion calling the administrative state a "behemoth":
Back in 2016, a colleague handed Donald F. McGahn II, then a top legal adviser to the presidential candidate Donald J. Trump, an appeals court opinion that eloquently and powerfully echoed much of what Mr. McGahn saw as the evils of an out-of-control federal bureaucracy. The opinion from the Denver-based appeals court by the relatively unknown Judge Neil M. Gorsuch suggested it might be time for federal courts to confront the "behemoth" of a longstanding precedent conferring substantial regulatory power on federal officials. One month later, Mr. McGahn placed Judge Gorsuch on Mr. Trump's list of potential Supreme Court nominees should he be elected. Four months later, he was President Trump's first nominee to the high court.
That August 2016 case was Gutierrez-Bruzuela v. Lynch. Gorsuch wrote:
There's an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design. Maybe the time has come to face the behemoth.
And indeed, that time would come about eight years later in Loper Bright.
What about Justice Kavanaugh? As I've noted many times before, Justice Kavanaugh was not on the first or second list. He was only added to a later list, and by that time, the fix was in. This was the Kennedy seat, and it was pretty clear the replacement had to be a Kennedy clerk. Still, with regard to the separation of powers issues that mattered to McGahn, Kavanaugh had a very strong track record:
Brett Kavanaugh, a former White House official sitting on the U.S. Court of Appeals for the District of Columbia Circuit, had what Mr. McGahn considered a long paper trail that put him at the "vanguard of curtailing agency power," eventually earning him a spot on the Trump Supreme Court contender list as well.
In a case like PHH, Kavanaugh found the structure of the CFPB to be unconstitutional, though stopped short of issuing a remedy to invalidate the agency. In fairness, everyone knew such a remedy would be a non-starter at the Supreme Court.
And what about Justice Barrett? McGahn acknowledges the playbook was not followed for her:
Amy Coney Barrett, a Notre Dame law professor confirmed to the U.S. Court of Appeals for the Seventh Circuit in 2017, did not have the judicial record of the other two, but Mr. McGahn liked what he heard during interviews for the appeals court post.
"She spoke favorably of the work of Gorsuch and Kavanaugh," he said. "These guys are cut from the same block of wood."
Barrett was selected due to a unique constellation of facts in a time of crisis. The Ginsburg seat suddenly came open, and Trump had to force through a nominee quickly, so they picked a woman who had already been vetted. And why was she picked? I've also heard that Barrett blew people away during her interviews for the Seventh Circuit. No surprise there. She is very charismatic and likable. But for all of the fixation on "pick someone with a record," they picked someone with no record.
She very few decisions on the court of appeals. The only decision of note was Kanter v. Barr, where she found that a person convicted of a non-violent, white collar offense, could not be permanently deprived of Second Amendment rights. And she was sure to cite Kanter in her Rahimi concurrence, shortly before GVRing Range.
When you pick someone without a record, you can be sure they will not be what you expected. I know people do not like talking about this drift, but the numbers don't lie. Adam Liptak made this observation in his end-of-year column:
Justice Barrett, the third Trump appointee, is particularly worth watching, Professor Epstein said. "Some indicators show that Barrett — though still way more conservative than her predecessor, Ruth Bader Ginsburg — is moving somewhat to the left," she said. "This term she overtook Roberts as the Republican appointee casting the highest percentage of liberal votes in divided cases."
Republicans are doomed to repeat their mistakes. Do not select a Supreme Court justice based on what people tell you. Pick a Supreme Court justice based on the opinions they actually wrote. Gorsuch and Kavanaugh are not cut from the same block of wood as Barrett. Barrett was a piece of unfinished wood, and Justice Kagan is coating her with one layer of glossy lacquer after another. (Update: I detailed Barrett's record in this article, and this recent post discusses her opinions this term.)
I am also curious about this part: "[Barrett] spoke favorably of the work of Gorsuch and Kavanaugh." A common swipe at Judge Ho and others is that they are "auditioning" for the Supreme Court with their opinions. I think that criticism is quite unfair for a host of reasons, but at least their so-called "auditions" are public and transparent. They are taking actions for all to see. I did a quick search of Judge Barrett's 7th Circuit decisions, and the names "Kavanaugh" and "Gorsuch" appear nowhere. Barrett did not even cite any Kavanaugh's decisions on the Second Amendment in Kanter. If she thought so favorably of their work, surely she could have found a chance to cite them. But she didn't. She played it safe. But in private, she quietly praised those judges--a convenient thing to do when a Supreme Court seat is on the horizon. We need to retire this "auditioning" barb--it is what judicial nominees say in private that is auditioning. When they say things in public, they are doing their job.
None of this should come as a surprise. Ruth Marcus wrote about the dynamics in her book. I flagged it in my post, titled Originalism, Inc.:
The Trump judge pickers' focus during those early discussions was not on prospective nominees' positions on the hottest-button social issues, abortion and same-sex marriage. Instead, it was on the less sexy but—to the assembled lawyers and, as significantly, to the wealthy donors who financed the Republican party—even more important matter of what Steve Bannon would later call the "deconstruction of the administrative state." Priebus laid it out: the social conservatives who had helped elect Trump might focus on abortion and same-sex marriage, but the donors cared about regulation. They were eager to undo what they viewed as the out-of-control regulatory apparatus that had been assembled since Franklin Roosevelt's New Deal. As McGahn later 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." Overturning Chevron would help with Bannon's promised deconstruction. And that, for all evangelical voters' focus on the Supreme Court and social issues such as abortion, was the real goal. The emphasis on social conservatism and its associated hot-button issues ended with 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." On this front, Gorsuch had a big leg up on the competition—and so would Kavanaugh, with his extensive record on administrative law.
And the Wall Street Journal editorialized along the same lines:
No one on Mr. Trump's list of nominees will claim to want to overturn Roe—and not because they are lying. In their caution and deference to precedent, they will be showing proper conservative respect for the law and the reputation of the Court.
That Loper Bright happened is no surprise. That Dobbs happened is still nothing short of a miracle. Had the Court punted on the issue, along the lines that Chief Justice Roberts preferred, I am convinced that Barrett's drift would have created some new Casey compromise.
And why did Roberts pull the trigger in Loper Bright--especially after he stopped short in Kisor? I think Roberts was personally humiliated that he couldn't broker a compromise in Dobbs, and was stuck on the outside looking in. It was position of weakness for the Chief Justice to be. Once Roberts realized there were five votes to overrule Chevron, he did not want to be left in the cold. If you can't beat 'em, join 'em.
