The Loper Bright Decision: A Victory for the Right Hemisphere
Chevron is dead. Thank goodness. It might have been the biggest Supreme Court victory for the right hemisphere ever.
Chevron said that, if a statute is ambiguous, the courts must defer to the regulators for interpretation and application, and the regulators could be reversed only if their rules were unreasonable. Regulators and bureaucrats became kings because, as deconstructionism taught us, words are always ambiguous, and showing that something is "unreasonable" is a hard burden of proof to meet if you're a plaintiff.
Chevron assumed that regulators are experts and that experts need to be listened to, as if regulators act only with a high level of intelligence that knows no bias.
Boy, those were heady and naive days, when a Court could believe such nonsense. And it wasn't that long ago: 1984.
Fortunately, Covid has disabused every person with a modicum of sense of the notions that experts are reliable, regulators are unbiased, and neither is corrupt. The experts are often the least reliable (because they don't realize they're unreliable). Regulators are extremely biased (because they refuse to acknowledge their bias). And both are among the most corrupt (because power corrupts and Chevron power corrupts absolutely).
The claims to expertise made by the administrative state are simply no longer tenable. The dissent endorsed by the three liberal justices concludes with a quote from the original Chevron ruling that “judges are not experts in the field.” In more innocent times, the public trusted the professionals in administrative agencies to be honest experts, who would not misrepresent evidence, or hide data, or agree among themselves to lie for political goals. Recent events have shown that trust to be misplaced. The pandemic destroyed that faith, and we no longer trust when we can’t verify.
How is this a victory for the right hemisphere?
Because it's a slash against the left hemisphere. A weaker left hemisphere helps promote the right hemisphere. I wish it weren't such a zero-summish game, but in these postmodern times, I'm afraid it is.
Bureaucracy, McGilchrist frequently points out, is left-hemispheric. It likes rules that provide clear-cut answers to problems, even when those answers yield absurd results. That, we've all experienced, is everyday bureaucracy: organizations that operate on rules that some jackass formed in his head, without due regard to their real-world application (which is, or should be, the only application that matters).
It's not the jackass' fault, of course, except to the extent that he actually believes he (or anyone) is capable of drafting such rules. No one can draft rules that cover a large swatch of human action in a way that will make sense in everyday applications.
That's a big reason why big sucks. Big corporations implement procedures to control thousands of employees and millions of customers . . . and they rarely make sense in everyday application, but the desk clerk says, "Sorry, that's our policy." Fortunately, big corporations have a pricing mechanism to answer to, so they have to adjust policies eventually.
Not so bureaucrats. There is no free market to check their excesses. There's just the law, and under Cheveron, there wasn't even that.
The left-hemisphere under Chevron was free to pontificate and enforce with virtually no check on its power. That's why I say its reversal is arguably the biggest victory ever for the right hemisphere in Supreme Court history.