by Ian Millhiser
The Supreme Court’s conservative majority on Wednesday appeared likely to execute what Justice Stephen Breyer described as the “greatest judicial power grab” since its 1803 decision holding that federal courts have the power to declare laws unconstitutional.
Breyer’s warning referred to Kisor v. Wilkie, a case for which the court heard oral arguments this week. Chief Justice John Roberts suggested in some of his questions during that session that he would prefer a somewhat more moderate decision than the outcome favored by the court’s right flank. So it is possible that the outcome in Kisor will only make incremental steps toward a goal popularized by the conservative Federalist Society during President Barack Obama’s time in the White House — transferring power from executive branch agencies to a judiciary that is increasingly dominated by the Society’s hand-selected judges.
Nevertheless, the court’s four liberal justices spent much of Wednesday in a defensive crouch, trying to warn their colleagues of the consequences that could result if their conservative colleagues toss out a legal doctrine that, according to Justice Sonia Sotomayor, stretches back to at least 1850.
Kisor involves the future of a doctrine known as “Auer Deference,” so named because of Justice Antonin Scalia’s unanimous opinion in Auer v. Robbins. That case held that courts should defer to a federal agency’s reasonable interpretations of its own regulations.
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