'Dark shadow that hangs over everything': This SCOTUS ruling is Kamala Harris’ main obstacle

31 August 2024

Since becoming the 2024 Democratic presidential nominee, Vice President Kamala Harris has faced pressure to unveil a comprehensive policy agenda. But one recent Supreme Court (SCOTUS) decision could complicate her efforts to implement any robust policies even if she becomes the 47th president of the United States.

According to the New Republic's Jason Linkins, there's "a dark shadow that hangs over everything" as Harris rolls out her policy proposals: The 2024 Loper Bright Enterprises v. Raimondo decision. In the landmark decision announced in late June toward the very end of SCOTUS' most recent term, the Court's six conservatives notably threw out 40 years of precedent known as the "Chevron deference."

Linkins argued that decision "puts the future of any policy that Harris favors in grave doubt," adding that Loper Bright gives "six unelected right-wing politicians who all enjoy a lifetime appointment a line-item veto over anything a Democratic Congress — and by extension Harris — wants to do, unless they can muster the votes to confront each problem they want to solve with an inhuman amount of hyper-specificity."

"If you want the Harris campaign to get more detailed on policy, I’m sorry to say that any conversation starts and ends with how they plan to confront a Supreme Court that has torched the separation of powers in the mad game of Calvinball they kicked off during the Trump era," Linkins wrote.

Prior to Loper Bright Enterprises v. Raimondo, the matter of how to interpret the application of federal regulations was at the discretion of the various government agencies tasked with regulating certain industries. This was made official by the 1984 Chevron v. Natural Resources Defense Council case, which was a 6-3 decision ruling that the judiciary "must give effect to the unambiguously expressed intent of Congress" in matters concerning the practical application of federal statutes.

But after this term, the power previously vested in federal agencies to interpret statutes regarding the regulation of the private sector now lies with the courts themselves. Justice Neil Gorsuch (appointed by former President Donald Trump) illustrated judges' lack of practical knowledge in his concurring opinion in the Ohio v. Environmental Protection Agency ruling issued just a day prior to Loper Bright. Gorsuch erroneously referred to the pollutant nitrogen oxide as "nitrous oxide," which is the laughing gas used by dentists.

In his article, Linkins made the case that SCOTUS "really is the most critical policy issue in this election." He cited the Supreme Court's July Trump v. United States case — in which the Court's conservatives agreed that presidents should have absolute broad immunity from criminal prosecution for anything deemed an "official act" — as an example of the nation's highest court now essentially acting as a "super-legislature in black robes."

"[E]ven if they blow the GOP out of the water electorally, the end of Chevron deference is a fail-safe against Democratic policy, constantly running in the background as long as five of the six conservatives on the Roberts court agree. In this way, Harris and her fellow Democrats are locked out of liberal governance," he wrote. "Since liberal governance will form the cornerstone of anything Harris and Democrats want to do during her time in office, a confrontation with a Supreme Court that’s holding the policymaking apparatus hostage is not a fight they can duck."

Linkins contended that Democrats need to make the case to voters that "the Roberts court is the primary antagonist to making things better, easier, safer, and fairer for ordinary Americans," calling SCOTUS conservatives "despoilers of the land and pilferers of our wealth." And he noted that it may be "time to revisit court-packing."

"Anything you might want an ascendant Democratic administration to do faces the judicial veto of right-wingers who can’t be voted out of office," he wrote. "[W]hether you’re a progressive fan of Medicare for All, or a centrist dedicated to means-tested, watered-down bulls—, you’re all in the same boat, so grab an oar."

Click here to read Linkins' full article in the New Republic.

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