Constitutional Caprice

by Varun Gauri and Ayesha Khan

Much has been written about the U.S. Supreme Court’s last term.  The conservative majority is in a hurry to undo decades of jurisprudence.  But what is the Court substituting in its place?

In its recent decision, West Virginia vs Environmental Protection Agency, the Court declared that the Clean Air Act of 1970 did not authorize the EPA to establish a carbon dioxide emissions trading system.  And in Kennedy v. Bremerton School District, the Court held that a high school could not prohibit a football coach from taking a knee in prayer at midfield after games.  In the former decision, the Court relied on the “major questions” doctrine; and in the latter decision, the Court relied on a “historical test.”

These may seem like disparate decisions, covering entirely unrelated circumstances.  But what unites them is that, in both cases, the Court failed to tell us what its test means.  The U.S. Congress, state legislatures, public school districts, police departments, and federal agencies are all subject to the U.S. Constitution.  When the Court announces tests and doesn’t tell those institutions what those tests mean, not only has the Court failed to do its job, but the institutions are left to guess.  Even worse, amorphous and ill-defined tests leave the Justices free to rely on their personal, religious, and political viewpoints in the decisions in question as well as in cases that come before them in the future.In the carbon-emissions case, the Court was tasked with assessing the propriety of a regulation that the EPA had adopted.  Historically, in evaluating whether an agency had the authority to adopt a regulation, the Court looked at the enabling legislation and asked if it was reasonable for the agency to do what it did.  Even if the delegation of power was not explicit, the Court was willing to defer to the agency if it was reasonable for the agency to have concluded that the statute gave it the power to regulate on the question.  This concept has been nicknamed “Chevron deference,” after a 1984 Supreme Court decision that set out the doctrine’s analytical underpinnings.

At issue in the West Virginia case, was the Clean Air Act’s grant of power to the EPA to adopt the “best system of emissions reduction” for power plants.  The EPA exercised that authority by requiring regulated energy-producing plants to operate more cleanly.  In 2015, however, in keeping with developing industry standards, the EPA turned to a “generation shifting” regime, in which coal plants were incentivized with a cap-and-trade regime to shift to natural-gas-fired plants and, ultimately, to wind-and-solar production.

If the Chevron doctrine had applied, the regulation would have undoubtedly been upheld.  Even if the statute did not explicitly authorize generation shifting, no one argued that it was unreasonable for the EPA to conclude that a generation-shifting regime was the “best system of emissions reduction.”   But because the conservative Justices were hellbent on limiting the “administrative state,” they resorted to another doctrine—the “major questions” doctrine—to strike down the statute.  Under that doctrine, if a question has “vast economic and political significance,” Chevron deference will not apply and, instead, agency action will be struck down unless Congress has explicitly authorized the agency’s action.  But what is “major” to you may be minor to me.  What is “significant” to you may be trivial to me.  This test means nothing at all.  It is a Rorschach test onto which each of us is free to project our subjective point of view.

Now let’s shift topical, if not analytical gears.  Kennedy involved a coach who wanted to take a knee in prayer at midfield after high-school football games.  Athletes joined him and, over time, it became a team affair.  The school district stepped in, instructing that the coach could pray in private, but that he should not do it while on coaching time.  In taking this position, the school district was relying on the longstanding principle, developed under the Establishment Clause to the First Amendment of the U.S. Constitution, that school officials are required to refrain from religious behavior during school-sponsored activities.  This principle was developed under the “Lemon” and “endorsement” tests, which have long governed Establishment Clause decision-making.  It was clear, under those tests, that the school district’s directive was not only allowed, but constitutionally required.

But the Court was ready to lob a Molotov cocktail at this longstanding jurisprudence, so it decreed the Lemon and endorsement tests “abandoned.”  And what did it put in its place?  The Establishment Clause “must be interpreted by reference to historical practices and understandings.”  What matters is “the understanding of the Founding Fathers.”  But then the Court simply failed to apply its own test to the issue!  It did not ask whether coach-led prayer had a historical pedigree or whether the Founding Fathers had deemed it a permissible practice.  And why is that?  Because there were no public schools at the Founding.  Instead of acknowledging that fact and the dilemma that it presented, the Court simply faulted the lower appellate court for having failed to apply the Court’s newfangled test.

Given the Court’s failure to provide direction about what the “historical test” means or how to apply it, public school districts (and all other governmental institutions subject to the Establishment Clause) that want to abide by the Constitution are left in the dark.  And school boards and city and county councils that want to intermingle church and state are free to push the envelope because the boundaries are unclear.  Meanwhile, the U.S. Supreme Court is free to do, frankly, whatever it wants, based on whim or caprice, because this “historical test” appears to mean whatever the Justices want it to mean.

Many have lamented the increasing ideological polarization of the Court and the selection of Justices to advance political agendas.  But these decisions reflect a deeper problem:  they lack the essential characteristics of law. For judicial decisions to function as law, they must do two things:  they must put forth reasoning that leaves the litigants feeling like they had a fair day in court, regardless of whether they prevailed; and they must let other stakeholders in society know what legal principles will apply if they become embroiled in disputes, so they can make life plans, business decisions, and policy determinations premised on that expectation.  Both results are crucial in pluralist societies, like ours, in which conflicts about fundamental values abound and high levels of technical and economic specialization create disparate social roles and life experiences.  Stated even more simply, because our society lacks an authoritative external standpoint—such as divinity, a conception of nature, or transcendental reason—on which people can draw to resolve deep disagreements, legal decisions must reflect reasoning.  Absent that, a decision is little more than a decree.

We understand why our friend, who teaches what has heretofore been known as “Constitutional Law,” now wants to rename her class “Constitutional Politics.”  The rule of law encompasses notions of longevity and predictability.  But jettisoning precedents willy-nilly, and replacing them with ill-defined tests, simply invites subjective and mercurial decision-making.  The last thing we should want as a country is to be governed by the subjective whims of five (or six) unelected Justices with lifetime tenure.