In an era when our politics seems to leave us all deeply divided, the Supreme Court’s end-of-Term flurry of agency-related decisions is a welcome reminder of how much we agree on. The challenge, of course, is that we don’t express our agreements simultaneously. But they’re there.
We want courts to create new doctrines of skeptical judicial review of agencies. To that end, many of us criticized the Court’s unskeptical decision in Kisor or celebrated the Court’s skeptical decision in the census Department of Commerce.
Also, we want courts to be more deferential to agencies. To that end, many of us criticized the Court’s decision in Department of Commerce or celebrated the Court’s decision in Kisor.
Meanwhile, we want courts to take the lead in preserve the structures for democratic self-government, and preventing the entrenchment of anti-democratic political powers. To that end, many of us criticized the Court for eschewing a robust Nondelegation Doctrine in Gundy, or for eschewing a robust Anti-Partisan-Gerrymandering Doctrine in Rucho.
Also, we are very wary of courts imposing arbitrary line-drawing standards on our political branches, especially when those lines have no clear basis in the Constitution’s text. To that end, many of us celebrated the Court for eschewing a robust Anti-Partisan-Gerrymandering Doctrine in Rucho, or for eschewing a robust Nondelegation Doctrine in Gundy.
Not long ago, Professor Metzger accused a lot of people of being “Anti-Administrativists.” It turns out she was half-right. To borrow Thomas Jefferson’s line, we are all Administrativists, we are all Anti-Administrativists.