Tag: Stanley Fish

Out of the Frying Pan: Chevron in Context

Posted on by Jerry Cayford

by Jerry Cayford

Kritzolina, CC BY-SA 4.0, via Wikimedia Commons

On June 28 this year, the U.S. Supreme Court overturned Chevron U.S.A v. Natural Resources Defense Council (1984). This was big, since that Chevron decision was the heart of the administrative state’s legal authority. Chevron formalized the executive civil service’s authority over complex decisions of practical governance, such as how to interpret and enforce tax law, ensure food safety, regulate trains and airlines, fund and oversee education, manage elections, and everything else we fight about nowadays. The nice view is that Chevron empowered expertise.

The cynical view (widely held) is that, through Chevron, a conservative Supreme Court gave the Reagan Administration power to ignore Congress’s laws by letting executive agencies twist their meaning at will; now, as those agencies have become more liberal and courts more conservative, a conservative Court has overturned Chevron in Loper Bright Enterprises v. Raimondo (2024), taking that same authority to twist the law’s meaning and transferring it from executive agencies onto courts. As Justice Elena Kagan says flat out, in her Loper Bright dissent, “The major­ity disdains restraint, and grasps for power.” I would not contradict the cynical view, on pain of appearing naïve. But I argue that there is a much bigger story here, one about how we as a society became threatened by authoritarianism and confused about truth.

That 1984 Chevron legal decision had an intriguing feature: it was considered, by its author Justice John Paul Stevens and his colleagues, to be nothing special, an uncontroversial repetition of common sense and long-standing precedent. How can that be? How could unanimous Supreme Court justices not know they were making history and remaking the law? We once wondered how the Earth could be spinning and circling the sun, yet we couldn’t feel the motion. The same puzzlement applies to the vast movements of history as to planetary movement: situated inside them, we don’t feel them directly; we have to figure out what is going on.

As Chevron evolved from its modest birth, it became a growing problem and its overturning an inevitability. There are familiar ways to tell this story (technocrats brought down by hubris; a pendulum swinging back to common sense), but a more illuminating, less familiar way situates it in intellectual history. The initial invisibility of Chevron’s Earth-shaking importance hints that Chevron shook the Earth by rejecting a century of intellectual development. Much more is going on than garden-variety power struggle. Read more »



Monday, July 9, 2012

What’s wrong with being a sophist?

Posted on by Dave Maier

by Dave Maier

Romano bookCarlin Romano is at it again. On the last occasion, he was eulogizing Richard Rorty; and here he is doing it again, among other things, in a new book, reviewed last week by Anthony Gottlieb in the New York Times. As Gottlieb quotes him, Romano tells us that the sophist Isocrates “should be as famous as Socrates”, given that his conception of philosophy “jibes with American pragmatism and philosophical practice far more than Socrates' view [i.e. considering the latter as the progenitor of Plato and Aristotle, and thus the entire Western philosophical tradition Romano takes Rorty to be rejecting]”.

Gottlieb is not impressed: “My first thought about this claim was that it is simply nuts, which is also my considered view.” (Heh.) As before, Romano enlists Rortyan pragmatism as an ally in his brief for sophistry. Gottlieb: “Rorty had urged philosophers to abandon their intellectual hubris and instead content themselves with interminably swapping enlightening tales from diverse perspectives. It was never clear why anyone would want to listen to such stories without endings.” I'm not particularly happy with this dismissive slap at Rorty's conception of philosophy as “conversation”, of which more below; but let's let Gottlieb continue:

According to pragmatism, our theories should be judged by their practical value rather than by their accuracy in representing the world. The ultimate fate of this idea was neatly put by a great American philosophical wit, Sidney Morgenbesser, who said it was all very well in theory, but didn't work in practice. He meant that pragmatism sounds like a good ruse, but it emerges as either trivial or incoherent when you try to flesh it out.

Morgenbesser was long retired from Columbia when I got there, but he was still around, and he never struck me as having so negative an attitude toward pragmatism as that (he would never have called it a “ruse”; he had too much respect for Isaac Levi to do that). In fact, the way I heard this quip, it was “Pragmatism is true, but it doesn't work.” This is much cleverer (if not thereby more authentic), and a direct response to the Jamesian dictum that “truth is what works.” (Wikipedia has Gottlieb's version, for what it's worth.) My version also avoids (roll that first half of the quip around in your mind for a bit) the lazy equation of pragmatism with sophistry shared by both Gottlieb and Romano, in dismissal and endorsement respectively. Several versions of pragmatism are perfectly compatible with the truth-directed nature of inquiry, even – with some tweaking – Rorty's own. But what about sophism itself? What exactly is wrong with it, that pragmatists should object to the comparison?

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