Elena Kagan Torches Supreme Court for Overturning Chevron

Justice Elena Kagan torched a Supreme Court ruling that single-handedly eliminated a legal precedent that courts defer to the expert opinions of federal agencies.

The court ruled 6–3 in Loper Bright v. Raimondo on Friday, overruling a landmark 1984 decision in Chevron v. Natural Resources Defense Council and shifting the balance of power toward courts rather than the executive branch when it comes to the interpretation of ambiguous rules.

That would effectively give any court and any judge veto power over all the decisions that any executive agency makes, from the Environmental Protection Agency to the Food and Drug Administration to the Education Department and beyond.

“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law,” Kagan wrote. “The majority turns itself into the country’s administrative czar.”

Kagan continued that the ruling would “produce large-scale disruption,” made a “laughing stock” of stare decisis (a legal principle necessitating the court rely on precedent), and made evident that the court’s supermajority “disdains restraint” and “grasps for power.”

“What actions can be taken to address climate change or other environmental challenges? What will the Nation’s health-care system look like in the coming decades? Or the financial or transportation systems? What rules are going to constrain the development of A.I.?” Kagan wrote. “In every sphere of current or future federal regulation, expect courts from now on to play a commanding role. It is not a role Congress has given to them, in the APA or any other statute. It is a role this Court has now claimed for itself, as well as for other judges.”

“All that backs today’s decision is the majority’s belief that Chevron was wrong—that it gave agencies too much power and courts not enough,” she added. “But shifting views about the worth of regulatory actors and their work do not justify overhauling a cornerstone of administrative law. In that sense too, today’s majority has lost sight of its proper role.”

Supreme Court Justice Sonia Sotomayor issued a scathing dissent Friday on her conservative colleagues’ decisions to essentially criminalize homelessness in its Grants Pass ruling. Sotomayor put the rest of the court on blast and layed out how the attack on the rights of homeless individuals is an attack on the rights of all Americans.

While the conservative majority argued that the high court must not impede local governments from criminalizing homelessness, Sotomayor wrote, “It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles.”

“The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow,” Sotomayor wrote. “For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment.”

Going on to quote social science experts, Sotomayor explained how punishing people for sleeping outside without providing offers to housing and available beds is simply “a big game of whack-a-mole.”

While the conservative justices trumpeted tropes about unsheltered homeless people being service-resistant, or denying shelter when offered, Sotomayor noted studies have shown that “the vast majority of those who are unsheltered would move inside if safe and affordable options were available.” She went on to say that when people do resist being housed, it’s often because those beds that are available may have “restrictions based on gender, age, income, sexuality, religious practice, curfews that conflict with employment obligations, and time limits on stays.” For example, the only shelter in Grants Pass, which is charity-run, has strict religious and work requirements.

The Supreme Court’s ruling on this case will allow cities and states to avoid the offer of shelter entirely if they so choose and offers one solution to homelessness: punishment.

As Sotomayor wrote, imposing fines and jailing individuals is not a solution. In her dissent, which she read from the bench, the justice described a story of a homeless man in Nashville who was arrested 198 times and had over 250 citations, making it difficult for an outreach worker to find him housing. The outreach worker was eventually forced to make him a T-shirt that read, “Please do not arrest me, my outreach worker is working on my housing.” Once the man, who experienced homelessness for 20 years, was able to secure stable housing, he “had no further encounters with the police, no citations, and no arrests.”

If criminalizing someone for the mere act of sleeping outside with a blanket wasn’t frightening enough, as some experts feared, this case also opens up the door for justices to challenge a concurring opinion, Robinson v. California, which held it was unconstitutional to punish someone for being addicted to drugs—for their “status” of addiction. Justice Clarence Thomas’s entire concurring opinion lays the groundwork to overturn Robinson.

Despite the conservative majority disguising its stance as a “leave it to states” approach, this ruling, as Sotomayor laid out, is an infringement on homeless individuals’ constitutional rights, with troubling ripple effects for all of us. “This Court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular,” wrote Sotomayor, Otherwise, “the words of the Constitution become little more than good advice.”

Sotomayor concluded her dissent by writing that she remains hopeful that we can address the crisis of homelessness through other means. “That responsibility is shared by those vulnerable populations, the States and cities in which they reside, and each and every one of us.”

The Supreme Court on Friday delivered a serious blow to administrative law and overruled the Chevron doctrine, a long-standing safeguard for clarifying ambiguous laws. In a 6–3 decision, with all liberal justices dissenting, the court overturned decades of precedent, stripping power from federal agencies and empowering the judiciary.

The Chevron doctrine, or Chevron deference, is a legal framework where courts traditionally defer the authority of interpreting an ambiguous federal statute to the federal agency in charge of overseeing that statute on the basis that the agency, not the courts, know best. Only when an agency’s recommended interpretation of a vague statute passed by Congress fails to be a “reasonable interpretation,” under Chevron, do courts get to alter the law.

Chevron’s survival was brought to the Supreme Court in two cases heard jointly. Both cases deal with a regulation from the National Marine Fisheries Service that requires professional observers on fishing boats, with a vague statute that seems to state the owner of the fishing boat has to pay for those required observers. The cases seek to clarify that statute and to overturn Chevron, after lower courts upheld the rule and determined it was a reasonable interpretation.

The Supreme Court during oral arguments seemed poised to throw out the Chevron doctrine or possibly limit its scope, which led tax experts to believe Chevron would get axed, according to the Journal of Accountancy. Speaking to the Journal, tax and technology attorney Andrew Leahey predicted the end of Chevron would prompt a sea of regulatory tax frameworks to “be put on hold and litigated,” with the added complications of expecting Congress to pass “incredibly specific” statutes, adding, “This will be difficult in the current political environment, as getting anything done in Congress is a chore.”

Justice Brett Kavanaugh argued that the interpretation of agency regulations varies “every four to eight years when a new administration comes in,” causing “shocks to the system.” In the decision delivered on Friday, Chief Justice John Roberts delivered a lengthy history of administrative law before arguing that federal agencies with specific expertise about the best way to implement unclear laws “have no special competence in resolving statutory ambiguities. Courts do.”

Opposing the decision, Justice Elena Kagan issued a strong warning about the Supreme Court’s judicial overreach in overturning the Chevron doctrine.

“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law,” wrote Kagan. “As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar. It defends that move as one (suddenly) required by the (nearly 80-year-old) Administrative Procedure Act. But the Act makes no such demand. Today’s decision is not one Congress directed. It is entirely the majority’s choice. And the majority cannot destroy one doctrine of judicial humility without making a laughing-stock of a second.”

As many politicians and pundits who watched Thursday’s presidential debate descended into a nervous frenzy over President Joe Biden’s supremely underwhelming performance, several Democratic lawmakers and media figures are choosing to stand by their man—even as that feels increasingly untenable.

In the spin room immediately after the debate, California Governor Gavin Newsom was already hard at work backing Biden, and wouldn’t entertain the topic on nearly everyone else’s mind—namely that it may be time to seriously consider switching candidates.

“I would never turn my back on President Biden’s record,” he said, according to The New York Times. “I would never turn my back on President Biden, and I don’t know a Democrat in my party who would do so, especially after tonight.”

Ever the Democratic Party’s contrarian, Senator John Fetterman likewise leaped to set himself apart from the scores of Democrats criticizing Biden’s debate performance.

“I refuse to join the Democratic vultures on Biden’s shoulder after the debate,” wrote the Pennsylvania Democrat on X. “No one knows more than me that a rough debate is not the sum total of the person and their record.”

Fetterman himself struggled to communicate clearly during a key televised debate against his opponent Mehmet Oz in 2022. Both Biden and Fetterman attempted to articulate their strong support for Roe v. Wade but were caught up in their own halting, awkward performances.

“Morning-after thermonuclear beat downs from my race from the debate and polling geniuses like 538 predicted l’d lose by 2. And what happened? The only seat to flip and won by a historic margin (+5),” Fetterman wrote Thursday night. “Chill the fuck out,” he advised.

Although some lawmakers and lobbyists have suggested that House Minority Leader Hakeem Jeffries should, with other party leaders, attempt to reason with Biden to abandon the race, he responded succinctly when asked whether the president should drop out: “No.”

These Democrats weren’t the only ones to defend Biden; several journalists and campaign members voiced their support for the president, in sharp contrast to the wave of panic that overtook on-screen personalities on CNN.

Rachel Maddow noted that the Biden who appeared at a watch party minutes after the debate ended was clearer and more energized—a “world away from what we just heard on the debate stage.”

“That Joe Biden would’ve killed in the debate, but the Joe Biden that we saw on the debate stage was about 90 percent more soft spoken than that. And in a monotone when you could discern him,” she said, adding that he seemed to “warm up” over the course of the debate.

Across the board, nobody could say anything positive about Biden’s debate chops, instead drawing on other examples to argue that the president could still be a contender. In the early hours of the morning, Harry J. Sisson, one of several social media content creators who have been courted by the Biden campaign, tried to compliment the president for still being awake.

“Look at this. At 2 am in the morning, President Biden was greeting his supporters at RDU airport in North Carolina. This is just hours after debating Trump. This man does not stop working & moving. He’s fit to lead and I can’t wait to vote for him,” wrote Sisson in a post on X, formerly Twitter, with a picture of Biden on the tarmac. While influencers’ social media posts are meant to come off more organically, it’s hard to forget that Sisson has been posting unpaid pro-Biden content since the 2020 election.

In another post, Sisson lauded Biden for slamming Trump during a speech to his campaign’s watch party after the debate had ended—although the president conspicuously failed to effectively attack his opponent at any point during the 90-minute run time. “Biden has a cold,” Sisson wrote. “Trump has 34 felony convictions. This is the easiest choice we’ll ever have to make as a country.”

Heather Cox Richardson, a professor of history at Boston College and an expert on American political and economic history, wrote in the Friday morning edition of her newsletter that Biden’s bad performance could be explained by Trump’s “Gish gallop,” which she said was “a rhetorical technique in which someone throws out a fast string of lies, non-sequiturs, and specious arguments, so many that it is impossible to fact-check or rebut them in the amount of time it took to say them.”

Richardson argued that Trump had been “gaslighting” Biden, and took aim at media pundits who fell for the former president’s chicanery. “Of far more lasting importance than this one night is the clear evidence that stage performance has trumped substance in political coverage in our era. Nine years after Trump launched his first campaign, the media continues to let him call the shots,” she wrote, urging readers to take a longer view.

As of yet, it’s unclear which is the more shortsighted: backing a candidate whose chance of winning is slipping away before the world’s eyes, or rushing to replace him and sending the American politician landscape into chaos.

Following an abysmal debate performance against Donald Trump, Democrats are scrambling to replace President Joe Biden in the 2024 presidential race. There’s just one hiccup: Biden himself doesn’t intend to step aside. So what are the options?

Per the Democratic National Committee’s rules, Biden cannot be stripped from the ticket by party leaders. But the convention can throw an open nominating process on the convention floor, opening the door for other candidates to take the front seat, reported Politico. That would necessitate a complicated gambit for power among the party’s 4,000 delegates, many of whom hold loyalties to the Biden administration for helping them get the position in the first place. Voting against him would effectively destroy that relationship.

Superdelegates, who previously held the power to vote for whomever they wanted within the party’s nominating process regardless of the desires of their localities, have also had a significant portion of that power stripped from them since the 2016 presidential election.

But, if Biden did agree to relinquish his run, Democratic strategists have already advanced a flurry of possible contenders to take his place. They include Vice President Kamala Harris, Michigan Governor Gretchen Whitmer, California Governor Gavin Newsom, Kentucky Governor Andy Besehar, and Illinois Governor J.B. Pritzker, among others.

Harris, who is already on the ballot, may be one of the most seamless options available, but her poll numbers have been anything but inspiring. A May Morning Consult poll found that, while Harris had higher favorability among African Americans, overall just one-third of voters thought she had the gumption to win in November. On top of that, the vice president has faced rounds of criticism for holding a relatively inactive profile since she took office in 2021.

But if she did take control of the reins, her own choice for vice president would set off a mad dash among the rising stars in her party. At the top of the possibilities would also be Newsom, though he’s not a beloved politician in California—something that could risk votes even inside a historically blue state. And, technically, unless either Harris or Newsom changed their place of residence, they wouldn’t be eligible for the state’s 54 electoral votes, according to Politico.

After Thursday night’s disastrous debate performance by President Joe Biden, Democrats are sounding the alarm on the incumbent’s chances of defeating Donald Trump in November.

Former U.S. senator Claire McCaskill gave a blistering assessment to MSNBC’s Rachel Maddow of how Democrats are feeling right now.

“Joe Biden had one thing he had to do tonight, and he didn’t do it,” McCaskill said late Thursday, speaking about how her phone blew up with messages from surrogates, senators, and other Democratic leaders. “Based on what I’m hearing from a lot of people, and some of them are people that are in high elective offices in this country, and you might guess where they serve, there is more than hand-wringing tonight. I do think people feel like we are confronting a crisis.”

MSNBC’s Joy Reid said that she was on the phone with Democrats throughout the debate, and “the universal reaction was somewhere approaching panic.”

“It’s hard to argue that Biden should be our nominee,” one Democratic operative who’s worked on campaigns at all levels for over a decade told CNN.

It’s “time to talk about an open convention and a new Democratic nominee,” a Democratic lawmaker and Biden supporter told NBC News.

“If it gets Biden not to run, then it was very good,” a former Obama campaign aide texted to Semafor about the debate. “Otherwise it’s bad.”

“Our only hope is that he bows out, we have a brokered convention, or dies,” an adviser to Democratic donors said to Politico. “Otherwise we are fucking dead.”

As The New Republic’s Walter Shapiro wrote Thursday night, “Let us pray, after a debacle of a debate, that the president has enough realism to recognize that he cannot win in an election that the Democrats cannot lose.” The Republican Party, meanwhile, has several disturbing plans to implement should Trump take office in 2025.

The Supreme Court issued a ruling on Friday essentially criminalizing homelessness by ruling in favor of the city of Grants Pass, Oregon.

In a 6-3 decision that followed the usual ideological lines, the high court ruled that it is not “cruel and unusual punishment” for local governments to issue citations or jail people for sleeping outside even if there is nowhere for them to go.

Supreme Court Justice Neil Gorcuch quoted Democratic Governor Gavin Newsom and San Francisco Mayor London Breed to make the point that the 9th Circuit had previously overstepped and was limiting local governments from utilizing “full panoply of tools in the policy toolbox.”

The case is a major win for Grants Pass, which has no public homeless shelters, but effectively banned homelessness by imposing escalating fines starting at $180 on those who sleep outside. Previously, the Ninth Circuit Court of Appeals had ruled that cities must be able to provide and offer shelter to homeless individuals before they can impose fines and criminalize individuals for the act of sleeping outside. The Justice Department also intervened to say that the Ninth Circuit was correct in saying that the Eighth Amendment prohibits the effective criminalization of homelessness.

This was the most significant homelessness case to come before the Supreme Court in nearly 40 years, and the high court’s ruling opens up a portal of callousness toward the homeless, as right-wing think tanks and politicians work to craft laws across the country punishing those sleeping outside.

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this, where are they supposed to sleep?” asked Supreme Court Justice Sonia Sotomayor in a hearing on the case earlier this year. “Are they supposed to kill themselves not sleeping?”

She echoed those same points in a brutal dissent on Friday, noting, “Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional.”

The Grants Pass ruling is dark, but it also bears a reminder that it doesn’t stop cities and states from doing the right thing: creating affordable housing to address the root cause of homelessness.

During Thursday night’s astonishingly bad presidential debate, Trump sprinted through a cascade of lies, half-truths, and misinformation with no pushback from CNN debate moderators Jake Tapper or Dana Bash. In lieu of challenging Trump’s lies, Tapper and Bash instead stuck to keeping candidates within their time limits, only pushing back against an answer when a candidate (Trump) failed to answer the question at all.

“The absence of real-time fact checking is the biggest failure of this debate,” wrote NBC News and MSNBC contributor Anthony Coley, arguing that CNN was “not meeting the moment.”

“How are none of the moderators fact checking this post-birth abortion nonsense??” Kate Smith, senior director of news for Planned Parenthood, fumed in response to Trump’s disturbing spew of anti-abortion disinformation, according to The Washington Post (her account is now private).

CNN’s political director David Chalian defended the tactic ahead of the debate, telling The Washington Post, “The venue of a presidential debate between these two candidates is not the ideal venue for a live fact-checking exercise.”

Lawyer and civil rights activist Olayemi Olurin largely agreed with CNN’s assessment, pointing out that, “It’s actually not the moderator’s job to ‘pick up the slack’ for the candidate who’s not doing a good enough job responding to or checking their opponent in the debate. That’s not impartial or the role of a moderator because they’d then be a part of the debate.”

“It is a failure on CNN not to fact check Trump’s lies but the thing is…if Joe Biden were performing the way he’s supposed to in a debate, his answers would be the fact-check,” Olurin noted during the debate. “So 3 things are true: Trump is lying his ass off, the [moderator] isn’t doing their job & neither is Biden.”

Regardless, the lack of real-time fact-checking was a boon for Trump, who nonsensically asserted Nancy Pelosi claimed responsibility for the January 6, 2021 Capitol riot, raged against “post-birth abortions,” which are not a thing, and blamed Biden for both Russia’s invasion of Ukraine and the October 7, 2023 Hamas attack on Israel as Biden fumbled to push back. The only time Biden really went toe-to-toe with Trump’s claims was when Trump challenged his golf handicap and the two derailed the debate to argue about golf.

CNN’s fact-checker Daniel Dale had earlier sent Trump supporters into a tizzy after posting that he’d be fact-checking the debate live, but that tizzy was soon quashed. Following the bungled debate, Dale reportedly got just three minutes out of all of CNN’s post-debate coverage to go over the mountain of lies Trump spewed.

In Thursday’s presidential debate, Donald Trump was asked three times by CNN moderators to say whether he’d accept the election results, regardless of who wins, and he finally sort of gave an answer—but couched it in complaints about fraud.

The first time, Trump went off on a tangent about how he wished Biden was a great president, because he would be “at one of my many places, enjoying myself” and “wouldn’t be under indictment.”

The second time, Trump went on and on about Ukraine, claiming that Putin would take the country and accusing Biden of making “stupid decisions.” “Russia would have never attacked” on his watch, Trump claimed, dodging the question yet again.

The third time, Trump conditioned his answer with concerns about fraud.

“If it’s a fair and legal and good election, absolutely. I would have much rather accepted these—but the fraud and everything else was ridiculous,” Trump said, ridiculously overlooking his supporters’ involvement in attempts to overturn the 2020 results in Georgia, Wisconsin, Pennsylvania, Michigan, New Mexico, Nevada, Arizona, and elsewhere.

Watch his heavily caveated answer below:

The two presidential candidates took a quick detour from stumbling over their words on Thursday to trash talk each other on a topic completely unrelated to the election: golf.

“Look I’d be happy to have a driving contest with him. I’ll remind you I got my handicap when I was vice president down to a six,” President Joe Biden said. Trump laughed and shook his head.

“By the way, I’ve told you before I’m happy to play golf with you if you carry your own bag. Think you can do it?” Biden continued.

“That’s the biggest lie that he’s a six handicap, of all,” Trump said, adding “yup.”

“I was a eight handicap—eight …” Biden continued.

“I’ve seen your swing, I know how you swing,” Trump said.

“Two regular club championships,” Trump continued, bragging about his achievements in the game. “To do that you have to be quite smart and you have to be able to hit the ball a long way. And I do it. He doesn’t do it. He can’t hit a ball 50 yards. He challenged me to a golf match, he can’t hit a ball 50 yards.”