1984: The Book, The Court, and Chevron

By Rich Kozlovich

It's interesting the Chevron decision originated in 1984, and until now the irony of this didn't hit me.  The book 1984 was a "dystopian novel and a cautionary tale by George Orwell" who wrote about government tyranny controlling every aspect of human life.  

Thematically, it centers on the consequences of totalitarianism, mass surveillance, and repressive regimentation of people and behaviors within society. Orwell, a staunch believer in democratic socialism and member of the anti-Stalinist Left, modeled the Britain under authoritarian socialism in the novel on the Soviet Union in the era of Stalinism and on the very similar practices of both censorship and propaganda in Nazi Germany. More broadly, the novel examines the role of truth and facts within societies and the ways in which they can be manipulated.

I'm amazed how I missed that as we're see all this playing out right now, and Chevron was the foundation for much of it.

I've been following and writing about the Chevron decision for years, and now that it's finally been overturned I decided to take a look at the make up of the Supreme Court that made that decision, and once we see that, we can see why they made a decision that turned government bureaucrats into legislators, prosecutors, and often times, judges with no oversight, and no control.

They were, Harry Blackmun, William Brennan, Chief Justice Warren Burger, Thurgood Marshall,  Sandra Day O'Connor, Lewis F. Powell, Jr., William Rehnquist,  John Paul Stevens,  and Byron White.   

The issue was over ambiguity in the interpretation of legislation, and since these bureaucrats are in an unending search to find ambiguity, even where there's total clarity, it was an open invitation for bureaucratic corruption and tyranny.   If there's ambiguity in legislation they should have ordered these agencies to return to Congress for clarification.   But these bureaucrats didn't want Congressional clarification because they knew the regulations they were imposing were never intended by Congress, and the Court was complicit in that political maneuver.  It's clear, at least to me, from the make up of the court, they didn't want the Congress interfering in their ability to legislate from the bench. 

This was a "unanimous" six member decision.  Marshall and Rehnquist recused themselves without explanation, and O'Conner did so because "her father owned stock in one of the parties."  So, let's take a look at the justices that decided to give the bureaucracy unbridled power to legislate from their desks without interference. 

Harry Blackmun was another Nixon failure.  The longer he served the more he "grew" and was embraced by liberals as "one of the enlightened".  He was the author of the Roe v. Wade decision, and spoke disparagingly about Clearance Thomas, who in my opinion has been the finest Justice to sit on the Supreme Court in my lifetime.  Unfortunately he was followed by Stephen Breyer.  Talk about two peas in a pod. 

William Brennan, an massive Eisenhower mistake, and was an out and out radical leftist working to diligently destroy the foundations of American society.  Unfortunately he was followed by David Souter, and while not as bad as Brennan, he was a disaster also.  Then he was followed by Sotomayor.  Apparently the Supreme Court has a seat designated for the insane.

Warren Burger was a Nixon appointee who was perceived as "an advocate of a literal, strict-constructionist reading of the U.S. Constitution", but was viewed as incompetent as a leader, but he wasn't stupid.  He correctly observed  "Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people."  He was followed as Chief Justice by  William Rehnquist, and fortunately Scalia took Rehnquist's associate justice seat.  Unfortunately he was followed by Roberts as Chief Justice, another G.W. Bush mistake. 

Thurgood Marshall, was another far left wing nitwit, and it was said as an attorney fighting for civil rights he was excellent, but as a Supreme Court justice, he wasn't all that much, and was considered a lazy judge, and of course those who defended him claimed that was unfair and racist.  In later years it was reported what he was really good at was watching soap operas, and as he aged he fell asleep on the bench and wouldn't retire.  Fortunately he was followed by Clearance Thomas. 

 

Sandra Day O'Connor was considered a moderate conservative swing vote, but the word conservative really didn't apply.  She was nominated by Reagan, and that was an abortion supporting mistake.  There's a reason Obama awarded her the Presidential Medal of Freedom.  Fortunately she was followed by Samuel Alito.  

 

Lewis F. Powell, Jr was another "swing" vote, but like so many of them he swung left, and was followed by Anthony Kennedy, another "swing" vote.  They seem to always appear to me to be swinging for the left field fence. 

William Rehnquist.  While I thought he was a odd character, he was consistently conservative in his views, even at times seeming extreme even to me.  As Nixon's hatchet man H.R. Haldeman stated, "He's way to the right of Buchanan". He was followed by Antonin Scalia as associate justice when he became Chief Justice.

 

John Paul Stevens is another example for term limits on the federal judiciary. He was 90 when he retired.  He was against the second amendment, supported affirmative action, and delivered the opinion on the Chevron doctrine, and was considered the last of the Rockefeller Republicans who thought Donald Trump was bad for the nation.  Unfortunately he was followed by Elena Kagan, and even dimmer wit than he.  

Byron White for the most part was considered conservative in his views, but during that period conservationism wasn't so clear as it is today since most conservatives held some liberal views, but he believed in big government control, and supported Chevron.  He might not have been great, but he was followed by Ruth Bader Ginsburg, a leftist radical.  

That was the court that decided Chevron, and after seeing who they were, it's easy to understand their foundational conflicts with the Constitution, and the spirit of the Constitution, ergo their need to create

"In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights. These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea" that are explicitly expressed in other constitutional provisions......."

An open ended concept that allows for abuse, and the courts have abused it massively over the decades.  Ending Chevron will help fix that.

More insights from these articles:

• Press Release From the Buckeye Institute: The Chevron Decision
• The End Of "Chevron" Deference