What’s All This Business About Chevron Deference, The Right of Privacy, and… Stare Decisis?

Taking in a Supreme Court confirmation hearing can be like watching a Cricket match: There are a lot of people running around purposefully, but it’s hard to tell why, or who’s winning, and what the point is. Here’s a non-lawyerly guide that might help, even though lawyers will quibble, charging, quite accurately, oversimplification.

Chevron Deference: Who do you want running your life—you, or not you?

First of all, if you’re wondering who is going to defer anything to a big company like Chevron, the answer is nobody; just the opposite. The people being deferred to are regulators, because Chevron Deference dictates, essentially, that when it comes to ambiguity in the law -- which is everywhere, given the way laws are written these days -- whatever the regulator decides it means is what it’s going to mean, even if the court sees a much more logical, plausible and reasonable way of looking at it. The court must defer to the interpretation of the regulator, no matter how compelling or obvious a different interpretation (like the one you are probably declaiming at the top of your lungs) might be.

See what that does? See how it effectively removes your remedy at law if you feel you are being unfairly victimized? Put another way, can you see the regulator sliding into home plate, bowling over the court system, the one you’re supposed to have access to when some guy in a mosquito net from EPA starts telling you things you very much don’t want to hear about a mud puddle in your back yard that is about to ruin your life?

This has been a bad situation for quite a while, depending on your point of view. Not surprisingly, Democrats love it since it accretes power exactly where they want it to be, while Republicans hate it because it accretes power exactly where they don’t want it to be. Accordingly, just last January the House passed (on a party line vote, not surprisingly) the “Regulatory Accountability Act of 2017” which will change the doctrine -- if it is passed by the Senate and signed into law by the President—and once again allow courts to do what they’re supposed to do, which is take a look at stuff to see if it’s fair and that someone’s constitutional rights aren’t being obliterated. Of course, the way the Democrats see the same thing is that it allows Republicans to throw monkey wrenches into every damn thing and ruin the world.

Both sides are going to try and pin Gorsuch to the mat on this. They want him to commit to one side or the other, which is to say, their side. Rumor has it he leans in favor of the corrective legislation. Watch how Gorsuch tries to do some open field running to avoid the issue altogether.

Why is Everyone So Obsessed with the Right of Privacy? Isn’t That Old News? Why Do They Keep Bringing It Up?

When you hear someone ask, “Do you believe the Constitution contains a right to privacy?” what they are really asking is, “Do you believe Roe v. Wade is constitutional and will hold up under assault?”

That’s because Roe v. Wade relies for its legal rationale on a woman’s right to privacy as one essential component. Take away the right to privacy and the construct falls apart. Since we all take our right to privacy for granted, and it’s sort of ingrained into our national character, it comes as a surprise to find that it is almost impossible to find a right to privacy in the language of the US Constitution. Almost impossible. That’s why you might hear “Griswold” mentioned a lot.

Griswold v. Connecticut was a case concerning contraception that pre-dated Roe v. Wade. Some argue that it was all very calculated, that abortion advocates were playing a long game in a planned, step-by-step process to build the foundation of a constitutionally inherent right to privacy in order to seize on that to cobble together the case that became, finally, Roe v. Wade. Whatever. The point is that they got a judge -- perhaps brilliant and certainly wacky -- named William O. Douglas to take time out from chasing secretaries around his desk (something he had quite a reputation for) to craft an opinion that said, well, okay, maybe there’s no direct language in the Constitution about the right of privacy, but certain other provisions cast shadows -- “penumbras” in his term -- and from those shadows there are emanations -- implications that can be drawn -- and one of those implications is, mirabile dictu, the creation of “zones of privacy”.

Actually, it may be that penumbras are formed from the emanations rather than the other way around, and it’s unclear when “zones” became “rights”, but, either way, this is pretty solid stuff -- solid enough, anyway, to become the constitutional rock upon which abortion advocates have built their church.

But it isn’t a rock, and that explains all the hand-wringing about privacy. Remember “Borking”? They hammered the guy, Robert Bork, endlessly to admit that there is a right to privacy in the Constitution, which he was reluctant to accede to because, being widely considered the foremost authority alive on that selfsame document, he was loath to acknowledge a contention that simply wasn’t so, notwithstanding any cockamamie penumbras and emanations anyone might wish to posit. So he said what he believed and he was flayed for it. (See Kennedy’s infamous, ignominious, profoundly unfair and mean-spirited Bork’s America speech, which destroyed Bork personally and forever and ushered in the era of vicious and ferocious partisan hand-to-hand combat over Supreme Court nominees.) The sword that he gave them was an admission that he did not believe the constitution provided a right to privacy, which is why no nominee since has been inclined to do the same, and a message was sent loud and clear to all future nominees: start liking emanations from penumbras, or pay the consequences.

What The Heck is Stare Decisis, And Why Won’t They Shut Up About It?

Stare decisis et non quieta movere translates as “to stand by decisions and not disturb settled matters” – precedent -- and Democrats are very interested in making sure court nominees are made to go on record as considering Roe v. Wade “settled law” protected by stare decisis, and will badger the nominee endlessly until they do so. They know Roe v. Wade is unconstitutional, that it will eventually be ruled as such, and they want to make sure stare decisis will allow it to remain standing anyway: Heads I win, tails you lose. Further, watch them take the position that stare decisis means that something that is deemed “settled law” can never be changed, forgetting (conveniently) that according to The Dred Scott Decision, we should still be shipping runaway slaves back to Scarlett and Ashley, and Plessy v. Ferguson would have nothing to worry about from Brown v. Board of Education.

Privacy, privacy, privacy. Every nominee; every time. It might not seem like it, but It’s all about babies, or would-be babies, one way or the other, and when they start talking about stare decisis you can do yourself a favor and treat it like the 7^th inning stretch. It’s going to be a moronic minuet wherein everyone plays their assigned role and then moves on, and the day will come when it’s all seen for what it is: a disgraceful exhibition of people with a very specific agenda failing to address that agenda openly and straight-on while offering only side-eye to the results of that craven approach, which includes, among other things, the violent cessation of sixty million pregnancies. But that’s just me...

The Inevitable Dance of the Great Divide

Republicans: If you don’t like the results of the law, change the law. (Hard. Requires cooperation and consensus.)

Democrats: If you don’t like the results of the law, change the interpretation of the law. (Much easier. Can be done by a single black-robed individual working by candlelight…)

It all comes down to that, over and over, and you can set up your scorecards accordingly: Republican inquisitors want to get the nominee to go on record as taking responsibility for a proper interpretation of the law, irrespective of the results; Democrat inquisitors want to get the nominee to go on record as taking responsibility for the results of the law, irrespective of the language of the law itself. If the language of the law is working against you, Democrats expect judges to find a way over, around, or through it, and if you don’t, they will accuse you of being on the “wrong side”, helping the big and powerful at the expense of the weak and vulnerable. They will trot out a stream of wrenchingly sympathetic victims of a misguided fealty to an ancient document and/or failure to find creative ways to coax that same document -- which should be a “living”, malleable, adaptive document -- into giving its imprimatur the chosen progressive cause of the day.

Republicans, while sympathetic to the plight of the affected, dispute that it is the job of a justice to take any side at all, no matter how they might feel, personally, about the results of those decisions. No one has made that case better than Robert Bork himself, right before a cohort of democrats led by Kennedy and Joe Biden destroyed him:

“My philosophy of judging…is neither liberal nor conservative. It’s simply a philosophy of judging which gives the Constitution a full and fair interpretation, but where the Constitution is silent, leaves the policy struggles to the Congress, the President, the Legislatures and the Executives of the fifty states, and to the American people.”

Will Gorsuch say something similar? If he does, take your hat off to him; he’s a brave man. Nominees do everything in their power to go on record about absolutely nothing, under the certainty that any position that helps them with one side will hurt them with the other. Thus, you have John Roberts saying over and over that he sees his job simply as “calling balls and strikes”, and then goes on to rewrite the rules of the game, change the playing field, and dictate the final score. Or you have David Souter, appointed by George H.W. Bush, presenting himself as being essentially a human cipher with no opinions on anything, only a completely disinterested love of the law, and then proce eds to be one of the most reliably leftist activist judges ever, making mincemeat of the Constitution in the process.

So that’s the game: Republicans want the nominee to commit to one thing, Democrats want him to commit to the opposite thing, and the nominee wants to commit to nothing.

The early line gives the odds to Gorsuch: The smart money says he’ll get the seat, for macro-political reasons, unless he should kick a bunch of own goals, which is unlikely given his reputation for savvy and sober-mindedness. This will not displace the usual congressional posturing, grandstanding and virtue signaling, sad to say.

When Gorsuch does get the seat, we won’t have any real idea what he’s going to do. Or, if he really does well, each side will be under the impression that he’ll lean in their favor on key issues, but still, we really won’t have any idea.

Popcorn, anyone?

Henry Scanlon is a writer and photographer from Ponte Vedra, Florida.  See more at www.henryscanlon.com.  Follow on twitter: @hscanlon33