Judging the Bureaucracy

The theme of this Supreme Court term will be the separation of powers and administrative law.

Today is the first day of the new Supreme Court term, which to court-watchers always has a first-day-of-school feel. In that spirit, the Washington Examiner (one of my favorite publications and worth subscribing to as well) has published my preview of the term, which among the cognoscenti is known as a “curtain-raiser” because of the velvet curtain behind the justices—although that curtain parts to admit the justices, rather than rising. In any event, this essay is teased on the cover of this week’s print magazine, which makes me doubly honored to feature it here. —IS

After two years that featured major rulings on abortion, guns, and affirmative action, the Supreme Court doesn’t yet have anything on its docket this coming term that will roil the culture wars. Instead, when our black-robed philosopher-kings come out from behind their velvet curtain on the first Monday in October, it’ll be renewed battles over the administrative state that will set the tone for the year.

Parsing the abstruse statutes and complex regulations that govern executive branch agencies was once a rather sleepy, and very technical, area of law. But as people have come to realize it’s these agencies, rather than a gridlocked and grandstanding Congress, that increasingly make the laws by which we live our lives, administrative law has come to the fore. As the Supreme Court has turned back expansive pen-and-phone schemes that range from a “clean power plan” to vaccine mandates and student loan cancellation, you don’t have to own green eyeshades in multiple hues to see that these hitherto nerdy debates over agency authority are a big deal.

A trio of cases the justices will hear this fall exemplifies this trend.