Untethered: How the Roberts Court is Rethinking the Law-Policy Relationship by Bennett Johnson and Daniel G. Aaron
The traditional conception of the judicial role in the U.S. government is to decide “cases” and “controversies” by “say[ing] what the law is.” Yet, an enduring question is to what extent consideration of policy may inform that task. Some might quickly dispose of this issue, as legal scholars have framed policy as a hands-off “anti-modality” in judicial review. The idea that judges would consider the “practical advantages or disadvantages” of a legal interpretation or the balancing of competing interests is, to many, dangerous. The Roberts Court has been outspoken in its position that policy is an improper consideration in the judicial process.[1]
Yet, Law-Policy Tethering—a new article by one of the above authors—aims to clarify the law-policy relationship. It argues that the Court has a long history of employing various doctrines that infuse a measure of policy into judicial review.[2] Some examples include the tiers of scrutiny in constitutional law, the remedial purpose canon in statutory interpretation, agency deference established in Chevron, and the “public interest” factor in preliminary injunctions and stays.
Each of these doctrines functions to “tether” legal decisionmaking to policy by requiring courts to: 1) adopt a measure of respect for democratic policymaking, 2) recognize the importance of legislative objectives and public goods, and 3) employ empirical testing to respect evidence-based laws while questioning baseless ones. These three tethers abound in Court decisions and are particularly pronounced in administrative law. Chevron deference reflected a judicial respect for administrative agencies’ empirical and factual competency. It also acknowledged the importance of democratic policymaking, noting that “federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do.” The remedial purpose canon shows a level of respect for public goods, requiring judges to read remedial statutes pro bono publico based upon the mischief they are designed to cure. Constitutional tiers of scrutiny require courts to afford a measure of respect to legislative and agency regulation, provided the regulation is backed by sufficient state interest and the means used are appropriately tailored. And in preliminary injunction cases, courts must consider the “public interest,” a factor developed in administrative law cases.
These examples are not intended to argue that courts should be required to subjugate themselves to policy. Not at all, in fact. Rather, they demonstrate how the judiciary has previously engaged in a healthy dialogue with policy. Through tethering doctrines, judges infused democratic policymaking, promotion of public goods, and empirics into legal reasoning. Even when these notions conflicted—for example, when a democratically created policy lacked an empirical foundation, a framework such as the tiers of scrutiny in constitutional law enabled judges to undertake a form of judicial agonism, struggling in the contest of these different ideals to reach a better outcome.
As the Roberts Court has insisted on separating law from policy, it has taken affirmative steps away from these doctrines and their benefits. The Court has begun employing “history and tradition” as its constitutional lodestar, at times even explicitly deploying it to replace the tiers of scrutiny. Use of the remedial purpose canon has become rare, and it has been snubbed when the Court interprets remedial statutes, such as the Fair Labor Standards Act. Loper Bright famously discarded Chevron deference in favor of greater emphasis on judicial interpretation. And according to Sam Bray, in public law cases, the four-factor test for injunctions and stays has become “increasingly just one factor” of “who is likely to prevail at the end,” which disregards the public interest in prompt agency action.
This shift away from law-policy tethering has frustrated policymakers by hermetically sealing off judicial review from legislative objectives, despite the long interaction between the two. The consequences of this are particularly pronounced in administrative law, where constitutional challenges to agency rules, the use of preliminary injunctions and stays on agency decisions, and the interpretation of enabling statutes collectively define the bounds of agency authority. Increasingly, these contests occur at the judicial level, particularly with developments in administrative law, including judge shopping.
Now, this reorientation has created numerous issues within administrative law. For one, although the Court has replaced some tethering doctrines with ostensibly neutral modes of interpretation to reduce its discretion, many commentators are growing concerned with judicial aggrandizement. For example, Mila Sohoni has argued that the major questions doctrine has conferred enormous interpretive power to the federal judiciary. The “history and tradition” method in constitutional law allows justices to “ventriloquiz[e] historical sources with their own values,” making the decision-making process opaque. Additionally, despite the Court’s assertion in Loper Bright that Chevron fostered temporal inconsistency, the loss of agency deference has created contemporaneous inconsistency, as courts may reach different conclusions on ambiguous statutory provisions. Loss of tethering could also serve to entrench the countermajoritarian difficulty in administrative law, as the Loper Bright framework now used by the court requires less respect for the democratic process, substituting judicial preferences for politically accountable decision-making.
With the loss of tethering, the Court appears to be disengaging with the empirical and scientific foundations of the administrative state and becoming a free-floating veto rather than a policy-conscious tribunal. Further, this effort to separate law from policy risks misunderstanding the judicial role itself. As the courts are tasked with saying “what the law is,” they have never operated in a vacuum of pure legal reasoning, unbound by policy considerations. By displacing doctrines that fostered law-policy tethering, the Court no longer has structured ways to acknowledge the intimate relationship between the two. Worse, the current direction of the Court suggests it is not removing policy from the judiciary but rather replacing a more transparent mode of engagement with a more opaque system. If the Court is to continue deciding cases that shape our modern administrative state in this way, the question remains as to what policy consideration will lurk beneath the surface.
On the other hand, there are valid formalist critiques of malleable legal doctrines. Formalists have argued that the balancing required by law-policy tethering appropriates a level of legislative power to the judiciary and fails to promote neutral rule-of-law principles like clarity and predictability. Rigid rules, they say, can create consistency and even cause judges to vote against their political affiliations, as seen in Bostock v. Clayton County. Yet these objectives can overstate formalism’s neutrality and understate the value of tethering. Concepts like deference aid in promoting judicial modesty by recognizing agency expertise and democratic accountability. Moreover, formalist methods can still preserve significant discretion, but on a less visible basis.
Law-Policy Tethering cannot resolve longstanding disputes over judicial methodology, but it seeks to challenge the view that policy is anathema to judicial review and highlight the value that policy tethers create.
[1] This is evident in numerous cases on a variety of issues: See New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1, 25–26 (2022) (discussing firearms); Encino Motorcars LLC v. Navarro, 584 U.S. 79, 89 (2018) (discussing fair labor standards); Loper Bright Enters. v. Raimondo, 603 U.S. 369, 403–04 (2024) (discussing administrative deference); Harrington v. Purdue Pharma L.P., 603 U.S. 204, 226 (2024) (discussing bankruptcy).
[2] The definition of policy can be murky. Blake Emerson has defined it as the “objectives and methods for government action.” The Article is limited to challenges to public policies and therefore does not consider private law.
Bennett Johnson is a J.D. candidate at the S.J. Quinney College of Law, University of Utah. Daniel G. Aaron is an Associate Professor of Law at the S.J. Quinney College of Law, University of Utah.
