Analysis | Supreme Court Wages War on Public Sector Expertise

On Thursday, the court, in yet another landmark decision, curtailed the Environmental Protection Agency’s ability to prevent power-plants from polluting the atmosphere. The EPA is populated with scientists and other experts whose mission involves protecting people’s health and reducing environmental risks — including the most glaring existential threat of our era, climate change.

But the court’s majority doesn’t recognize any indispensable virtues in the EPA’s expertise. It believes that the EPA and other federal agencies should act sparingly — and possibly shouldn’t even exist — because they exercise powers that belong to Congress, not to unelected wonks appointed by the president.

When agencies take actions of “vast economic and political significance,” the court ruled, they can do so only with precise guidance from Congress — and not independently. To that end, the court ruled that the EPA should regulate individual power plants state by state and not set sweeping, one-size-fits-all regulations at the national level.

The court claims to operate on the principle that its decisions aren’t meant to establish policy goals but simply reflect where it believes the power to make such decisions should reside. In practice, however, the court is upending preexisting and often effective regulatory processes and inserting itself as the de facto policy maker.

The EPA ruling, for example, guts the Biden administration’s ability to help craft a national response to climate change. In theory, according the court, Congress will now step in and rise to the challenge. That, of course, is unlikely to happen. Congress hasn’t come up with a holistic blueprint for combating climate change despite decades of effort. Corporate energy interests have routinely trumped the public interest by blocking, or simply stalling, legislative solutions; congressional gridlock is tantamount to inaction.

The practical effect of this judicial philosophy is to leave the court — a collection of lawyers who also possess limited expertise and real-world experience — the arbiter of how best to address climate change. “The Court appoints itself — instead of Congress or the expert agency — the decision-maker on climate policy,” Justice Elena Kagan noted in her dissent on the EPA ruling. “I cannot think of many things more frightening.”

But ignorance is bliss, even when it involves well-trained and gifted jurists overseeing the highest court in the land. As my colleague Liam Denning pointed out, the court doesn’t have a complete or sophisticated grasp of the structure or economics of power generation in the US. Yet it deems itself fit to prescribe remedies anyway. The court’s approach, Denning says, will prove to be less efficient, slower and more expensive.

Given those realities, a little humility might be in order. But this isn’t a humble court. Besides, it has larger goals in mind. The EPA ruling is a stalking horse for what will certainly be a broader judicial assault on what the court’s majority likes to call “the administrative state.” And that’s a reflection of nearly 90 years of conservative animus toward New Deal agency-making and the federal bureaucracy that expanded in the decades after the Great Depression and World War II.

One person’s “administrative state,” however, is another person’s “problem solver.” One person’s “faceless bureaucrat” is another person’s “expert.” Everybody likes to embrace terms that confirm their biases. That becomes much more problematic when bias so diminishes the value of expertise that sound advice goes unacknowledged. Avoiding that trap is hard to do when we’re awash in disinformation and mistrust, but it’s our only escape from disaster.

The New Deal and the strong central government and federal agencies it spawned tackled real problems like economic dislocation and global warfare that the private sector and individual states weren’t prepared to address at the time. Critics were right to be watchful for evidence of a wasteful, overweening state and misguided regulations in the years that followed. But they were wrong to dismiss the presence and value of independent, public sector expertise. Experts, whether they ply their trade in the private or public sector, usually have more informed approaches to problems than the rest of us. Denigrating them as “elites” is useful for winning political wars; it’s a recipe for chaos if you care about bold and effective problem-solving.  

And climate change is just as threatening now as warfare and a depression were in the last century, perhaps more so. The private sector and individual states are currently unwilling or incapable of fully meeting that challenge rapidly and effectively without a push or an assist from the federal government. The value of that assistance will hinge, in part, on how well expertise is deployed.

Haggling over federal regulatory minutiae matters, especially if ill-considered guidelines crimp the private sector’s dynamism or substitute rule-making for informed policy-making. But history and reality have repeatedly taught the importance of having centralized, well-informed experts at the helm during crises that require national responses — crises such as climate change.

This isn’t where the Roberts court comes down, alas. In a range of recent related decisions involving reproductive rights, gun safety and public prayer, it has also masked its decisions as simple delineations of where the power to make policy should reside. In practice, however, the court is making policy itself.

The court is also justifying its actions by issuing rulings steeped in pseudo-historical word salad and hypocrisy. It is happy to block states from enacting legislation conservatives oppose (such as gun safety) while allowing states to enact legislation conservatives support (such as depriving women of the right to control their pregnancies and health). The court’s majority is authentically committed to its own brand of torch-and-pitchfork conservatism, not to a consistent articulation of the mechanics of effective governance. It should be more honest about that.

While the Supreme Court has cherry-picked how often it empowers states to control their own destinies, it hasn’t really thought through the practical implications of some forms of state control. Good luck effectively confronting pandemics when the battle is balkanized. Let’s see how capable states are of managing the national sports gambling boom the court has unleashed.

Meanwhile, the fate of federal agencies such as the EPA will continue to come up for discussion.

Should it have the opportunity, will the Supreme Court decide, for example, that financial markets are best left to their own devices and that the Securities and Exchange Commission should just be dissolved? Or will it say that members of Congress have more skill and insight — more expertise — than the SEC’s team, and thus should be vested with more of its regulatory and oversight powers? Or will it rule that Congress should be able to respond to every twist and turn in the world’s most innovative and kinetic financial market by constantly outlining exactly what the SEC should do day to day?

Would the court have similar approaches to overhauling how the Food and Drug Administration intersects with the pharmaceutical industry and public health? The Defense Department and military action? The National Transportation Safety Board and airlines? The Justice Department and civil rights?

You get the picture. All of this boils down to deciding who knows best, and how much of that knowledge you’re willing to respect, albeit judiciously.

For its part, the Roberts court envisions Congress as a better receptacle for expertise than well-trained, experienced civil servants at federal agencies. That’s to be expected because problem-solving isn’t this court’s primary concern; how power is delineated comes first. A reckoning for that worldview may have to wait until the planet becomes more of a charred marble than it already is.

More From Other Writers at Bloomberg Opinion:

• Supreme Court Has Taken Control of Climate Policy: Noah Feldman

• Supreme Court Agrees on Need to Divide Country: Clive Crook

• Praying Coach Case Is About Parental Rights: Stephen L. Carter

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Timothy L. O’Brien is a senior columnist for Bloomberg Opinion covering U.S. business and politics. A former editor and reporter for the New York Times, he is author of “TrumpNation: The Art of Being the Donald.”

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