The Roberts Court delivered a number of wins for conservatives in its recent term, and Professor John O. McGinnis thinks it may mark the maturation of the Court’s administrative state jurisprudence. Host and contributing editor James Patterson is joined by Professor McGinnis, who explains both the broader trends of the Supreme Court, and some of this year’s major cases, including Mahmoud v. Taylor, US v. Skrmetti, and Trump v. CASA. 

Related Links

Law & Liberty’s Coverage of the important cases of the recent term:
John O. McGinnis, Logic Without History
Chad Squitieri, Nondelegation Doctrine in Limbo
Joseph Griffith, A Victory for Religious Liberty
James Rogers, Skrmetti‘s Win for Self-Government
Adam J. McLeod, A Charity Case
Richard W. Garnett, Education Pluralism Delayed

Transcript

James Patterson (00:06 ):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. I’m your host, James Patterson and contributing editor to Law & Liberty. And our guest today is Professor John O. McGinnis, the George C. Dicks Professor in Constitutional Law at the Pritzker School of Law at Northwestern University. He is a graduate of Harvard Law School and has areas of expertise in constitutional law, international law, and antitrust law. Today he is going to be giving us our Supreme Court rundown, which we do annually. And so we are going to start with just a general discussion of the session and then go through some of the more important cases and maybe touch on some interpretive questions at the end. Professor McGinnis, welcome to the Law & Liberty Podcast.

John McGinnis (01:32 ):

Delighted to be here.

James Patterson (01:34 ):

Alright, let’s get into a general question is: how would you describe the docket for the past year? Was it a victory for conservatives, a retrenchment of the progressives? What is the general thrust of all the cases combined?

John McGinnis (01:51 ):

I think overall this was another very good term for, if we want to use the term conservative versus liberal, which doesn’t completely describe the court because there is an interpretive axis as well. There’s also an overlap between what conservatives and liberals think about interpretation. So I think that it’s fair to say this was a strong term for conservatives, although I would note that what I think is the most distinctive about the Roberts Court, what I think it will be most remembered for in 50 years is an administrative law revolution. In other words, trying to put back the administrative state within the bounds of separation of powers, forcing the court to say what the law is and the legislature to legislate rather than have the executive branch create broad rules under discretion. I think that may be petering out a bit because there were at least two cases where the court could have taken the further and declined to do so. So I think we see that this is one way I would describe it as a mature conservative court in which at least in the administrative law area, the clear objectives may actually have been largely realized. On the other hand, there are still very important decisions that I think conservatives welcome particularly, the curbing of universal injunctions–which goes to the nature of the judicial power–and I think a very important religious liberties case in Mahmoud v. Taylor, which is very important both doctrinally and sociologically. And maybe I think the most important case of the term.

James Patterson (03:47 ):

You really stressed before we got started, how overlooked the administrative law cases were. So why don’t you tell us about the case that you think has been most overlooked and what makes it so significant?

John McGinnis (03:58 ):

So one very important case is FCC v. Consumers’ Research because there the petitioners tried to make a full-blown nondelegation argument and the court rejected it despite indications before that the court was interested in perhaps revisiting the nondelegation doctrine. This may suggest that we are coming to the end of the revolutionary period of the Roberts Court on administrative law because first of all, there is a strong dissent by Gorsuch speaking for himself and Justices Alito and Thomas arguing that this again was a very broad delegation and while it may have met the old standard of “intelligible principle,” it still allowed the executive branch large policy discretion of the kind that critics of the administrative state have suggested only Congress should exercise. And actually, of course, the Gorsuch, including in a dissent that was joined by Roberts, had raised questions about the intelligible principle doctrine.

(05:14 ):

And Justice Kavanaugh, who’s in the majority in this case also had raised questions about it. So there seemed to be perhaps a majority for really changing the nondelegation doctrine and requiring Congress to make the major policy decisions in legislation. And that would’ve had huge implications for the administrative state because right across the policy space Congress has, at least critics would say, abdicated its policy authority and given that over to the executive branch, allowing the executive branch to make really legislative decisions. Nevertheless, Kagan–an opinion by Justice Kagan–really brushes that aside. And that suggests, I think, that we’re not going to see a major change in the nondelegation doctrine. And indeed Justice Kavanaugh, in a concurring opinion, suggests well that’s no longer necessary because the court has already done work to confine the administrative agencies. And two things in specific, he discusses, one, the Loper Bright decision that takes away interpretive discretion from the administrative agencies and places it in the court.

(06:30 ):

And two, the major questions doctrine that suggests that at least in new kinds of actions by the administrative agency, ones that aren’t traditional, and if they are major and go beyond filling in the details in a new way, well then Congress has to come back and authorize it. But that’s not a constitutional rule, it’s a rule of statutory construction you might think of as a poor man’s nondelegation doctrine. So I think that case is really very important. But the nondelegation doctrine has been a target for conservatives for as long as I’ve been a law professor, and it really suggests that the nondelegation doctrine isn’t going to change much. And it suggests that it won’t change much because the court has already a structured doctrine in a way that it thinks sufficiently confines administrative agency. So I think that’s a very important case.

James Patterson (07:27 ):

Right. This is actually the first I’ve heard someone talk about it to that degree. Do you think maybe it’s because there’s a bias for big changes and in this case this isn’t really a big change?

John McGinnis (07:40 ):

I think that’s right. I think that’s right. So it’s a case of course that liberals are quite happy with and conservatives hardly want to trumpet. And maybe