Tools of Power: How Establishment Journalists Corrupted Themselves and Distorted the Law
As the impending Chevron reckoning shows, journalists have distorted the way citizens think about the Court, the Constitution, and political power.
For the last half-century, Americans have been living, mostly without our knowledge, through a fundamental shift in how we understand the way we’re governed. Though the final arbiter of where power lies in our republic, the Supreme Court, has continued its more-than-two-century role with few shifts in its practices, the way the Court has been represented by the press, another of our system’s vital protectors, has undergone a sea shift.
Quietly and without widespread acknowledgment, Supreme Court reporters have interposed themselves between the Court and the public, thanks to fifty years of changes in establishment journalistic practices which have increasingly made reporters tools of national power. They’ve used misrepresentation and innuendo to obscure information about the Court’s decisions, which should be driving a public debate over what institutions have power in our country. Their moves, buried in the 1970s and 1980s and quietly visible in the 1990s and 2000s, accelerated in the 2010s as the justices’ rulings moved from facilitating to stopping to dismantling national authority. Since the end of 2020, with the Court staffed by six justices committed to this decentralizing project, Court journalism has turned into bad literature that functions to smear the Court.
On January 17, this pushback reached an explicit point of reckoning. That day, the Supreme Court heard two cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. US Department of Commerce, that present fundamental questions about national administrative authority, the key driver of centralized power that journalists mostly support. But, for the first time, and thanks to the past nine months of concentrated reporting disseminated on television and online, segments of the public may see the decisions in these cases as tied less to these questions and more to the possibility that one or more justices have been compromised by favors and gifts. Explaining this jarring reality begins with understanding the stakes in the cases and their connection to the Court’s larger legal project; and then investigating how the journalists tasked with clarifying that project have instead come to muddy it, running by stealth their own unaccountable agenda at the expense of the American people.
Chevron and the Evolving Role of the Court
The January 17 cases are important because they deal with a precedent, Chevron deference, that concentrates the arrangements or misarrangements of America’s postwar order of expanding government. It refers to the deference national courts should grant administrative agencies when those agencies choose how to apply Congressional legislation. This is mostly the case where specific legislative wording doesn’t exist or can be read in different ways.
In its 1984 decision which set the Chevron precedent, and especially in ensuing judicial interpretations that solidified it, the Court granted national executive agencies latitude to interpret Congress’s delegations of authority to them, reasoning that the national judiciary had no business weighing in. This had the endorsement of judicial “liberals,” who supported administrative law and continued the Court’s rarely broken tradition of deference to the nationally elected branches. It also had the support of judicial conservatives looking to reorient the Court’s jurisprudence away from centralized government, including at the hands of judges. The Court’s first “originalist” justice, Antonin Scalia, was a supporter of the Chevron doctrine.
But, after the appointment of Justice Thomas in 1991 gave the Rehnquist Court a five-justice conservative majority, the general drift of the Court’s decisions moved against Chevron’s deferential logic. The Court’s impetus was the immediate past: nearly 40 years of rulings by the Warren and Burger Courts that had allowed the national government, including judges, to assume unprecedented powers—often in the name of giving Americans rights and with the help of an amenable Congress, compliant states, and a concerned but inactive establishment. In response to this new normal, the Rehnquist Court acted to limit national government expansion and restore power to states. It struck down, more than any Court before, provisions of national legislation and action, and the Roberts Court followed its lead.
Today, this limiting project converges on Chevron, which has allowed bureaucrats to expand their purview across America at the expense of both states and Congress. In response, conservative jurists and thinkers have shifted gears when it comes to the ruling: they’re now willing to use courts to restrain the administrative state and the national government. That shift will likely determine the Court’s decisions on the January cases.
Such transformative cases should be widely discussed, especially since the Court has been explicit about why it’s making its moves.
And a thoughtful, serious discussion is possible. Overall, both the nature of the Court and the changing reality of national government give conservatives a strong case. Since national courts are politically-appointed bodies that aren’t directly accountable to the public, they can make democratically legitimate but nuanced decisions to shift power from actually unelected interest groups and administrative agencies that seem to run Washington policy. This is a nonprofit-lobbying-bureaucratic nexus that Chevron has helped make impossible to control, likely against the intent and wording of the legislators who created the framework. Still, Liberals might ask: Do you really trust unelected bodies to weigh in on administrative decisions, potentially creating regulatory chaos, especially since the administrators are experts who use their knowledge to provide important practical protections to Americans on the ground?
Questions like these once dominated popular politics. In the 1870s and 1880s, Democrats and Republicans waged politics around the creeds of Jefferson’s small government constitutional principles or Lincoln’s big government ones. In 1912, Theodore Roosevelt ran on a third-party platform that targeted the Supreme Court as a tool of monopoly interests and argued for giving the Executive more power at the likely expense of judicial review. Why can’t the same kind of public reckoning take place today? In part, because the people reporting on the Court have shifted their professional practices and loyalties over the last fifty years in ways that emphasize gossip and spectacle over law and constitutionalism.
Read more at Law & Liberty.
Image: TV Networks on Supreme Court Plaza; CC by 2.0.