Creating an impenetrable force field through which no progressive public policy could pass was always going to be a two-step process for the American right. And the second step is more infuriating – and for the left, more vexing – than the first.
The first step in creating a right-wing backstop against any and all liberal-left policymaking was stacking the federal judiciary with unqualified political hacks who had been groomed by far-right legal think tanks bound and determined to repeal the progressive gains of the 20th century, and to stop the left from addressing the seemingly intractable problems inherent in end-stage capitalism. Hence, you have Neil Gorsuch and Amy Coney Barrett on the Supreme Court, and the federal circuit courts are teeming with Trump-appointed, dumbass, Fox-pilled hacks crazier than your craziest COVID-denying uncle.
The political bad faith that flows from filling the courts with overt political actors has been plain to see: Abortion is murder, there is no such thing as climate change, workers and LGBTQ folks and people of color have no rights not explicitly spelled out by the founding fathers. It goes on and on, but it’s these toxic viewpoints that have been mainstreamed in the legal fabric of the United States thanks to two generations of the activist right wing taking over the entire federal judiciary.
It wasn’t enough to pack the courts with judges closely aligned with the larger conservative project, the vast right-wing conspiracy that stretches through and affects every part of American life.
The ghouls who helped the right take over the federal courts had to get the most consequential cases before the monsters they had birthed and placed on the various courts. What good would fascist judges be if they couldn’t put their hideous little fingerprints all over legal precedents that had protected vulnerable communities from the horrors of capitalism and white supremacy? What purpose would these robed politicians serve if they could not undo the hard-fought gains that had made the United States a little less unequal, a little more humane?
Enter the major questions doctrine, a so-called legal theory pulsating with the most toxic kind of bad faith – unsubtle bad faith, in-your-face bad faith. The Roberts Court’s major questions doctrine made itself known in 2022 when the far-right members of the Court ruled against the Environmental Protection Agency, saying it did not have the power to regulate greenhouse gas emissions that will one day cook us alive. The Court’s Republican justices said, in short, that the Obama-era EPA had gone too far in regulating corporations poisoning the environment, therefore creating a “major question” that must be addressed by SCOTUS. It was all very convenient for the justices who had been placed on the Court to ensure the steady advance of capital at any cost.
Like any bad faith worth its salt, the bad faith of the major questions doctrine lies in the shaping of reality: When a Democratic administration creates a “major” regulation, it must be addressed by another branch of government – namely, the one dominated by far-right zealots working in lockstep. Congress, the federal courts say, must create this kind of regulation, not the federal agencies. And they say this knowing our big, dumb legislative branch is incapable of passing major progressive legislation because of the right’s structural advantages, namely gerrymandering, voter suppression, and the ludicrous composition of the U.S. Senate. That the federal courts must address all regulatory actions has never been true, no matter which party has controlled the Supreme Court. But it must be true now that the radicalized and lawless Republican Party can no longer win free and fair elections. Think of the major questions doctrine as a make-believe part of the checks-and-balances concept. That the doctrine is found nowhere in the nation’s founding documents does not seem to bother the Supreme Court’s originalists. Imagine that.
The major questions doctrine – arguably created by sneakily right-wing SCOTUS Justice Sandra Day O’Connor – will continue to be used as a legal cudgel against the so-called administrative state, a far-right term for government agencies crafting rules to make the US slightly less bad. The doctrine all but ensures congressional Democrats – even if they one day secure overwhelming House and Senate majorities – can never address health care, student loans, pollution, and a range of other issues that certainly fall in the traditional purview of government agencies and the lawmaking parts of the state. The major questions doctrine means the right-wing Supreme Court becomes the country’s lawmaking mechanism. In every way, the doctrine represents a constitutional crisis in which one branch of government (the judiciary) has made another branch (the legislative) nothing more than honorary, but only when Democrats are in charge.
It’s all incredibly bleak, I know. A 6-3 conservative SCOTUS majority is enough to make elections seem meaningless if you ruminate on the existential horrors of the major questions doctrine (they're not meaningless; I think you should vote). But for some legal experts – folks who know a little more about this stuff than your fourth-favorite Bad Faith Times writer – all hope is not lost. There are ways to address this bad-faith doctrine that could give life to progressive policies. Maybe.
An Imperial Court Rules All
Oren Tamir, a postdoctoral fellow at Harvard who has written extensively on legal rulings in administrative state matters, said in an interview with Harvard Law Today that there could be ways around the controversial major questions doctrine (MQD) – legal remedies that just might allow the government to address the most pressing issues of our time.
“We live in a democracy, and we don’t always agree on where power should lie,” Tamir said. “But we need to create a legal framework that reflects, not denies, these disagreements and which doesn’t permit any side to lose indefinitely and fatally.” (By “any side,” he of course means the left)
In terms of consequences, for those who want to see active government, the MQD in its new form seems really troubling. The MQD stops agency action when it applies, even if a statute potentially gives them power to do what they want, allegedly until Congress authorizes the action clearly and anew. That seems benign, because Congress can, in principle, still act. But we know that the chances of congressional action today are actually really slim. Given the polarized and hyper-partisan structure of our politics, and other factors, scholarship has shown convincingly that the odds of congressional action are quite poor. Congress, in other words, isn’t going to do what the MQD says it is meant to do. When you realize this, and when you realize further that the whole point of an administrative state is to allow broad delegations to agencies, then the MQD strikes one as quite harmful. First, it suggests that the Court is not really respecting governmental choices about delegating power to agencies. Rather, the MQD makes the Court look like an imperial court, motivated based on power, not reason. And the MQD also looks highly deregulatory. It stops dynamism and action, especially in domains where it’s most needed — like climate action or regulation of emerging technologies. So, in short, the MQD is an expression of judicial aggrandizement and wholesale libertarianism.
For all the necessary acknowledgements Tamir makes about the intentionally gridlocked nature of Congress and the power of the Republican-controlled federal courts, he fails to see that right-wing judges don’t give have a single fucking reservation about operating as an imperial court, the only governmental entity that matters. They like this arrangement. In fact, the right has worked tirelessly for half a century to secure this arrangement. The point of dominating the federal courts was to neuter a Democratic administration or a Democratic congressional majority. These are the political realities legal wonks so often fail to see.
Perhaps, Tamir said, conservative judges and justices could be made to see the value of judicial balance in rulings on administrative state matters.
… solving what’s really wrong with the MQD concerns the asymmetry in the system that is the result of its introduction. As I said, one of the problems is that the current MQD is deregulatory and stops agency action and creates a kind of asymmetrical administrative law. This, I think, is problematic because it sort of writes a libertarian principle into the fabric of our administrative law, impermissibly. But I suggest that the Court could even fix that. I go through various suggestions in this respect in my paper, but a key one that I make is that the Court (and lower courts too) should show more willingness in reviewing instances of agency inaction than it (and they) currently do—for example, failures to respond to petitions for rulemaking, failures of supervision, and more. The goal is, as I say, to achieve a sense of rough balance and symmetry in our law, between those who are hopeful of expansive governmental action and those who are concerned about it, to the extent possible.
All of Tamir’s proposed solutions – while glistening with good faith and much thoughtful consideration – strike me as dangerously naive. To think the right is going to give up the game and put down the MQD weapon of mass legal destruction after working for so long to get to this moment of right-wing domination is, at best, silly. Tamir and other legal scholars who believe there are ways to return to a normalized federal judiciary without expanding said judiciary are fantasizing, trapped in the apolitical dreamscape of academia. None of what Tamir suggests acknowledges the all-consuming legal project that has defined the American right since Reagan.
And so, gnashing our teeth over the major questions doctrine and the radicalized Supreme Court comes back to the only real solution: Adding seats to the Court and expanding federal circuit courts to break right-wing control of those courts. Joe Biden has no appetite to do this necessary work as he caves to the institutionalist instincts that have left Democrats as the rule-following crew who care not for power, but for decorum and tradition. This is the time to take action before all is lost and a Republican president further cements right-wing control over the only institution that matters. It’s enough to make you cry blood.
The judicial right will continue hammering away at progressive policies for as long as it’s allowed to. Bullies won’t stop bullying until they are stopped.
Follow Denny Carter on "X" at @CDCarter13. He's also on Threads at @cdcarter13 and BluSky at @cdcarter13.bsky.social.