The Supreme Court Thinks That by Arguing More, We Can Be Less Divided

With its decision in Loper Bright Enterprises v. Raimondo on Friday, the Supreme Court has put new limits on how government regulators can interpret the law.

The court’s decision will limit the power of federal agencies like the Environmental Protection Agency, the Federal Communications Commission and the Food and Drug Administration to interpret the laws they administer — as, for example, in the E.P.A.’s mandating reduced emissions from power plants on the basis of its own interpretation of the Clean Air Act.

This decision has set off alarms for some, but it actually points the way toward a role for the courts that is less divisive — because it pushes everyone in our system, including judges and Congress, toward their proper constitutional work.

By narrowing the so-called Chevron deference, the court has reasserted its authority over the meaning of vague legislation. Doing so may press Congress to make its law-writing more definitive and call on administrative agencies to apply substantive subject-matter expertise, rather than conjure the meanings of the laws they are meant to carry out.

The Loper Bright case highlights a broader pattern. It is just one of several high-profile disputes the court has taken up this term — others touch on social media, guns and more — and the results have often been met with outrage and harsh criticism of the court.

But it’s worth seeing that it is often the very fact that we turn to courts to resolve these disputes that ratchets up tensions in our society. That is why the court seems eager to recover the constitutional system’s balance of authorities, and to help relieve those tensions.

Many of the divisive questions that reach the Supreme Court could be addressed legislatively rather than judicially. But a lawsuit offers combatants the prospect of total victory rather than unsatisfying compromise, and Congress is now often eager to hand power to administrative agencies whose edicts are inevitably appealed in court.

With its Loper decision, as with some other high-profile cases in recent years, the court is trying to change that pattern. By pushing all the individuals involved to do the particular jobs assigned to them by the Constitution, it is charting a path toward a more legislatively centered political order, in which more decisions about what the law should be are reached by haggling and bargaining rather than by expert fiat or judicial pronouncement.

The Constitution itself clearly shows a preference for this approach. But the tendency to prefer assertive judicial action is now thoroughly bipartisan, which contributes to our bitter polarization.

Granted, not everything can be resolved by legislative bargaining. By explicitly protecting some essential rights (in the Bill of Rights, the post-Civil War amendments and elsewhere) and setting its assorted institutions against one another, the Constitution does recognize limits on legislative power that courts must enforce. Some questions really cannot be left up to majorities, as our history painfully demonstrates. But those questions are exceptional, and policymaking by legislative deliberation is meant to be the norm.

If we would let it, the Supreme Court is trying to show us how such deliberation through even our deepest differences could render our diverse society less divided.

Consider the 2022 case of Dobbs v. Jackson Women’s Health Organization, in which the majority overturned Roe v. Wade and returned the governance of abortion to the states. Though highly contentious, to put it mildly, it amounted to the court taking an intense moral and political controversy out of its own hands (where it could not be durably resolved) and putting it back into the democratic process.

The reasoning of the majority’s decision was judicially straightforward: The Constitution nowhere establishes anything like a right to abortion. But its effects will be civically profound. While it can be hard to see through the fog of political combat, the abortion debate has begun to rearrange itself around the core human questions at issue. States with clear majorities on one side or another can better align their laws with their moral ideals. In more divided places, and perhaps nationally in time, durable moral progress will require compelling, humane, persuasive arguments and a gradual approach to change.

Neither side of the debate will find this easy. Both are pained to see a question we consider morally fundamental treated as negotiable. But it is precisely because we are all equal in dignity and rights that we cannot coerce one another regarding such questions: Moral progress will require persuasion, and persuasion will be well served by the imperatives of democratic politics.

In Loper, too, the court has gestured toward the counterintuitive truth that our society will be less divided if we make important decisions by arguing with one another and seeking tolerable accommodations than if we delegate the big decisions to bureaucrats or judges.

This notion has a conservative ring to it, because it carries echoes of an originalist judicial restraint, the philosophy developed on the right in the decades of liberal dominance on the court. But restraint is the wrong way to grasp its promise in our time.

Originalism began as a framework for judicial action, as it sought to answer progressive judicial activism run amok — particularly in the 1960s and ’70s. But we now require a framework for constitutional action that looks well beyond the courts. Congress today is perversely underactive, often declining to play its constitutional part. The executive has taken on roles well outside the framework of energetic but steady administration outlined by the Constitution.

So the courts are now frequently encouraged by both sides of our politics to circumvent the resulting chaos and determine the direction of public policy.

To help set this mess straight, judges need to see their role in the context of the larger system. Facing hard cases, where the meaning of the Constitution and the laws may not be clear, they should reach for the republican logic that underlies the Constitution.

That logic is not partisan. The court’s decision in Loper will constrain the freedom of action of the next Republican administration as much as that of a Democratic one. Like the court’s broader recourse to the constitutional order, it creates more room for all sides of our politics to make their cases, and therefore also stands to ease our intense polarization.

The structure of our Constitution can promote greater unity by enabling negotiation and accommodation. End runs around the Constitution therefore tend to intensify escalating conflict.

It is easy to see why we want judges to do more than that — they seem like the only constitutional officers capable of doing much of anything now. But we must actually demand something harder of them than just doing more. We must ask them to do their proper constitutional work and nothing else, so that everyone else might do the same.