Overturn Chevron, Kill Science in Government

When people talk about “Chevron” these days, they aren’t discussing the oil company. They’re discussing a 1984 Supreme Court decision involving that company, Chevron USA, Inc. v. Natural Resources Defenses Council, Inc.. Our current Supreme Court seems poised to modify or overrule it. Yesterday the Court heard arguments to that effect, in a case involving fishermen, namely Loper Bright Enterprises v. Raimondo.

Unfortunately, all the current news and discussions about these cases that I’ve seen completely miss the point. And they miss it by a mile.

Chevron is the decision that opened the door to science in government, and a bit of engineering, too. If our current Justices weaken or overrule it, they will take us back to the bad old days, before Galileo invented observational science in 1632. They will take governmental decisions involving science, health, medicine, industrial safety and the environment out of the hands of experts in our administrative state, our highly-developed expert bureacracy. Instead they will put these decisions in the hands of politicians or judges like themselves. In so doing, they will wipe out, in one deadly stroke, a mighty pillar of the Western Enlightenment.

Science of course will carry on. Private companies will continue to practice it, ignoring or suppressing results that threaten their profit margins. Universities will continue to do basic science, as long as funding from government sources survives, but otherwise subject to the strings that private funders impose. Science will continue to flourish abroad, increasingly in places like China, where its results will be put to use controlling and manipulating the masses. But science as practiced by democracies will suffer perhaps the greatest blow since the Church tried Galileo for heresy for having the temerity to suggest that ourlittle blue planet, in a spiral arm of a minor galaxy, is not the center of the Universe.

The mechanism for this wipeout is profound but easy to describe. Chevron requires that politicians and judges defer to duly appointed administrative experts in decisions within their fields of expertise. If their decisions are a reasonable—even a plausible—interpretation of the federal statute that governs their activities, then the judges should not substitute their own, inexpert judgment for the experts’. That, in a nutshell, is the teaching of Chevron.

This rule makes common sense from many perspectives. It makes supreme sense from the perspective of division of labor. As a body that represents all the people but has few, if any, experts on any given subject, Congress is best positioned to establish broad goals for regulation. For example, Congress might empower a federal agency to reduce industrial threats to human health. Federal experts in that agency then might decide, based on published science and their own measurements, how to best meet that goal. They might decide, for example, to reduce the emission of olefins from cars’ and trucks’ exhaust pipes, or to phase out coal-fired electric power plants.

What basis would judges, nearly all of whom have just three years of postgraduate training in law and history, to second-guess the decisions of experts with doctors’ degrees and years of practice measuring emissions and their effects on human health and happiness? Wouldn’t judges’ views on the relative merits of such precautions be like practicing medicine without a license?

Today there is yet another powerful reason to defer to experts’ decisions on what Congress must have meant. Congress is in perpetual gridlock.

These days Congress can’t even decide to fund the basic functions of government. So which approach is better: (1) to let experts decide how to make life better for our people, subject to Congress’ later veto power if it can ever get its act together; or (2) to let the experts do nothing that is not specifically and unquestionably authorized by Congress, so that nothing that any business might object to gets done unless a dysfunctional Congress can agree enough to order it? In the age of gridlock, wouldn’t Option (2) simply shut down our administrative state?

Of course Option (2) is what so-called “conservatives” appear to desire. But would that desire remain when parts of the airplanes they fly on start falling off in midair, or when authorized asthma medicines start driving their kids nuts?

Congress can always de-authorize an administrative rule or practice of which it disapproves. The question posed by Chevron is whether the details of such rules and practices should, if they seek to advance congressionally specified goals, be determined by experts duly appointed for that purpose, or by generalist judges with no special training or expertise. Doesn’t that question answer itself?

(The possibility of the Demagogue winning a second term as president threatens a second kind of assault on administrative expertise. He has indicated that he would make personal loyalty to him, rather than expertise, the primary if not the sole criterion for appointment to administrative positions in his second regime. Analysis of this threat and of ways to combat it—other than by refusing to re-elect him—is beyond the scope of this essay.)

The final point of common sense also relates to expertise. The vast majority of both politicians and judges doesn’t just lack the specific expertise to second-guess experts in various diverse fields of science and engineering. They lack the basic mindset and training. They lack the training in math and science even to appreciate quantitative results beyond simple fractions and percentages. They lack the expertise to evaluate which scientific papers and experiments have validity or warrant further study, and which have enough flaws or raise enough doubt to require further verification.

On what do I base these statements? I left behind my Ph.D. in science (geophysics) to study law and become a lawyer in 1975. In all my careers since—three years in law school, eight years in law practice, and 24 years of consulting and teaching law—the number of lawyers and legally-trained people whom I met who had similar training in science and engineering I could count on the fingers of one hand. One was a medical doctor who put himself through law school working in emergency rooms on weekends.

The people who most often become our politicians and judges are nearly all trained in law, history, politics and the “liberal arts,” not science, technology, engineering or math (the so-called “STEM” fields). By and large, they don’t think quantitatively. They don’t think much about physical, biological or even sociological cause and effect, as for example, did MLK (who was not a lawyer!). They think in airy abstractions and abstract syllogisms often unanchored in anything approaching physical reality. They rely on a priori abstract reasoning, much as did Aristotle, most of two millennia before the Enlightenment and the modern science that came with it.

This “Aristotelian” mode of thinking is seductively attractive. Many pols engage in it even today. But it’s worth pointing out that, in the five or so millennia of recorded human civilization, only the last four centuries stand out as improving human life beyond the “nasty, brutish and short.” Those four centuries coincide entirely with the advent of science in the 1620s and the Enlightenment that followed. Surely this was cause and effect.

If cause and effect be tallied, this so-called “conservative” Supreme Court has a dismal record. In Citizens United, it gave corporations the same free-speech rights as real, individual people. Now every good law student knows that corporations are legal abstractions with no physical embodiment but their employees and managers. The effect of giving these abstractions human rights was to grant overwhelming power of “speech,” backed by corporate billions, to corporations’ big shareholders and managers. Fox, Sinclair, Elon Musk, our former president and every like-minded billionaire have used this power to subject our people to propaganda for “alternative realities” the likes of which not even Orwell could have conceived.

In MacDonald v. Chicago, the Court interpreted our Second Amendment, with its clear predicate of a “well-regulated Militia,” as a personal right to personal armed protection. Its later decisions expanded that right to “keep and bear Arms” not just in one’s home, but on the streets of our cities, and not just with pistols, but with automatic weapons of war. The effect has been a rash of senseless gun massacres, mostly by demented people, which last year reached the level of far more than one per day. A secondary effect has been a sense of personal insecurity and dread that pervades our culture and civic life.

In Dobbs v. Jackson Women’s Health Organization, the Court largely took away womens’ rights to control their own bodies and reproductive destinies when pregnant, even with the aid of modern medical science. It left them at the mercy of state pols and religious leaders, who have their own axes to grind. At least women—for the time being—still have the hard-won right to vote and can own property without their husbands’ consent!

So our good Justices just might follow the abstract lure of this Aristotelian reasoning and take decisions about our health, safety, environment and biology out of the expert hands of scientists and engineers in the federal bureaucracy and put it in their own hands and the hands of their subordinate judges. If there is one common theme among all these dismal decisions, it will have been the lack of any attention to practical cause and effect and reliance on abstract, a priori reasoning worthy of Aristotle or a medieval pope.

In all this willful ignorance of evident cause and effect, the good Justices seem loath to recognize some undeniable facts of life. No one elected them. Three of them were appointed by self-evidently the worst president in our history. And the sole simulacrum of “democracy” in their selection was senatorial hearings that have become a partisan charade, with several justices apparently lying openly about their devotion to precedent.

We and our media today may miss all these earmarks of abrupt intellectual and societal decline. But future historians will not. They will note the Court’s role in our nation’s decline and increasing internal dissension. And they will leave clear digital records advising future democracies, should they arise, to have better checks on their judicial branches. For the branch that is supposed to be the “weakest,” with no army to enforce or bureaucracy to apply its Aristotelian edicts, ours may turn out to have been instrumental in accelerating our national decline.


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