The pages of our nation’s newspapers have been awash in environmental apocalypticism in recent months, raising fears about the impact of this term’s forthcoming Supreme Court decisions. A headline in Nature accused the Court of waging a “war on science.” The Guardian made the only barely more modest claim that the Court is poised to “[overrule] all the expertise” accumulated by the environmental bureaucracy. Vox trumpeted “the most significant attack on America’s clean water laws since the 1970s.” Writing in USA Today, Robert Redford argued that the Court could “weaken [the Clean Water Act] to appease big polluters.” And the New York Times sounded the alarm over the Supreme Court’s “very dangerous strategy for the environment.”

Science, Progressivism, and the Rise of the Administrative State

Understanding the current conflict about science at the Court requires looking back more than a century, when leading progressives were convinced that the Constitution’s original design preserving the separation of powers interfered with efficient and “modern” management of society by expert elites. Woodrow Wilson published a famous paper arguing that public administration should be cabined from democratic politics to follow “scientific logic” rather than “ideology or interest.”

For decades, the Supreme Court thwarted undemocratic efforts to remake the executive branch into the modern administrative state. But the Great Depression gave progressives supermajorities in Congress an opportunity to institutionalize their vision of government by purported experts. During the New Deal era, Congress divorced many government officials from democratic accountability to those they rule and removed presidential control over many government actions. The National Labor Relations Board’s authorizing statute from this era, for example, limits the President’s power to remove Board members. There are similar limitations on the President’s power to remove Social Security Commissioners.

The rise of dubious extra-constitutional doctrines decades later fortified the administrative state. An almost complete abandonment of the non-delegation doctrine in Yakus v. United States, which prohibits Congress from giving its core legislative power to any other entity, facilitated broad grants of legislative authority to regulatory agencies and allowed bureaucrats to rule virtually by fiat in many areas.

Moreover, judges frequently abdicated independent evaluation of administrative actions in favor of “deferring” to the judgment of the bureaucrats who run the agencies. These judicial deference doctrines wrongly instruct courts to defer to an administrative agency’s interpretation of a statute, even if another interpretation of the statute made more sense. While the constitutional arguments against these doctrines are reason enough to oppose them, the policy fruits of the rise and rise of the anti-democratic administrative state further vindicate the Constitution’s framers.

These anti-democratic moves were—and sometimes still are—defended on the grounds that expert regulators insulated from politics have a more “neutral” view of their subject areas than elected presidents or legislators. These experts are thought to be free of partisan and other biases that skew politicians’ judgments.

And while there is evidence that the hoped-for neutrality has failed to materialize, even if agencies were staffed with genuinely politically-disinterested experts, the technocratic rule is an invalid ideal. There are many areas in which scientific analysis may shed light on part of a problem, but where science cannot alone explain how to integrate those facts into sound public policy.

Take the COVID-19 pandemic: expert scientists and technocrats can tell us how the virus is transmitted and identify measures that hinder transmission. But they do not have the expertise to balance the benefits of disease prevention against these measures’ costs. For example, they may lack the expertise to forecast the effects of closed schools on children’s development and learning or to predict the economic harm that flows from prolonged business closures.

Similar patterns exist in environmental policy, on which the recent pieces mentioned above are focused. Technical experts can identify how water becomes polluted and measures for amelioration. They cannot so readily explain how to weigh the benefits of environmental preservation against financial costs or conflicting values like property rights. Such value judgments should be made by democratically accountable politicians.

And while presidents and their appointees have biases, agency bureaucrats have their own distinctive blind spots. Public choice theory suggests that executive branch employees often choose to pursue policies that are in the interests of executive branch employees as a class, even if those policies are not in the general public’s interest. It perhaps should be unsurprising that bureaucrats like policies that expand the power of bureaucrats.

That pro-agency bias by those who devote their professional careers and identities to advancing their agency’s mission needs to be properly discounted by jurists whose responsibility is to discern the meaning of legal texts in a neutral, independent manner. Even among professional scientists in government, the pro-agency bias can lead to cherry-picking of data (consciously or unconsciously) to support agencies’ litigation positions. Industry experts suffer from similar pro-industry bias. It is ironic that many readily denounce industry biases while pretending that agency experts are immune to such temptation.

Finally, the unaccountable administrative state contributes to political polarization. The extent to which we are ruled by sprawling bureaucracy charged with implementing vague language that imposes few meaningful constraints on bureaucratic discretion is a genuine problem.

Political appointees from one party issue rules based on broad statutory language, and the same language is broad enough to support essentially the opposite interpretation once opposite-party appointees assume office. This pattern has emerged in fields as diverse as environmental regulation, telecommunications, immigration, and civil rights when Trump appointees rescinded Obama-era rules. The same phenomenon in the opposite direction is emerging as President Biden reverses Trump-era rules.

These costs of rapid regulatory changes are borne by private individuals and businesses, who generally prefer to be subjected to consistent rules. But more importantly, they raise the stakes of politics. The more that is at stake in any given election, the more important it becomes that one’s preferred party holds power, and the harder it becomes to empathize with members of the opposite party. A growing body of studies shows how polarization makes our personal lives poorer.

Has the Modern Supreme Court Really Been Waging War on Science?

Returning to the Supreme Court, its constitutional role is to resolve the specific legal cases and controversies that come before it and to otherwise stay in its constitutional lane. It cannot resolve broad philosophical disputes about science’s role in the administrative state. But it can—and should—begin re-examining jurisprudential doctrines that wrongly fortify the unconstitutional administrative state at the expense of democracy and the separation of powers.

In some recent cases about which Nature and the others complain, the Supreme Court has declined to defer to purported agency scientific expertise about particular statutes—but that was because it decided the more basic question about whether the agencies had the legal authority to take the actions at all. In those cases, it did not opine on the underlying scientific issues. In other words, it should be of no concern to the Court that every scientist on earth agrees that some policy is desirable if Congress never gave the agency the power to regulate the issue in question.

For example, the Court declined to uphold the Centers for Disease Control and Prevention’s nationwide moratorium on evictions in counties experiencing substantial COVID–19 transmission, finding it “strains credulity to believe” that the moratorium was authorized by a decades-old statute giving the CDC power to “implement measures like fumigation and pest extermination.” 

Later in the pandemic, after vaccines became widely available, a case about whether the Occupational Health and Safety Act (OSHA) authorized a nationwide employer vaccine mandate reached the high Court. The Court did not opine on whether vaccines were effective or prudent, or whether private employers should require them on their own. The narrow legal issue was whether COVID-19 was an “occupational hazard” within the meaning of the relevant statute. The Court held that this vaccine mandate was not authorized by a statute that merely granted OSHA power to set occupational health and safety standards. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the per curiam opinion stated.

On the other hand, on the same day, the Supreme Court upheld a narrower vaccine mandate applying only to Medicare and Medicaid recipient facilities, reasoning that this rule fit more closely within an authorizing statute giving the Secretary for Health and Human Services power to set health and safety requirements for Medicare and Medicaid recipients.

Finally, in West Virginia v. EPA, the Supreme Court overturned the Environmental Protection Agency’s Clean Power Plan, holding that “it is not plausible that Congress gave EPA the authority to adopt on its own” the Clean Power Plan. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” the majority opinion concluded.

It is important to emphasize what these cases do not do. None take a substantive position on the scientific issue in dispute. The nationwide moratorium cases do not make scientific claims about whether COVID-19 is serious. The two vaccine mandate cases do not take positions on whether the vaccines work. West Virginia v. EPA’s holding does not rest on scientific assertions about climate change or whether the Clean Power Plan is good policy.

In other words, all these cases are about the limits of agencies’ legal authority rather than about what “science” shows. One need not agree with any or all of these holdings to see that they are fundamentally about legal interpretation rather than science. And finally, in all three cases, if Congress is unhappy with the result, nothing in the opinions prevents it from enacting legislation establishing a different policy. In fact, Congress has done exactly that in response to mere conjecture in a non-controlling concurrence within the last six months.

If the speed of congressional response is a problem, the remedy may be as simple as Congress itself taking measures to scale back procedural roadblocks. Prominent administrative law professor Chris Walker has put forth an interesting proposal to “fast track” legislation involving major questions cases like West Virginia v. EPA.

Conclusion

It should please Nature to learn there is no war on science at the Supreme Court. All the pieces mentioned above fundamentally misunderstand the role of courts.

It frustrates agency officials who seek to weigh the scales of justice in their favor, but Supreme Court justices are experts in a different domain: legal interpretation. Moreover, judicial duty requires them to exercise legal judgment without bias. Sometimes their statutory interpretations will match an agency’s, sometimes not. Sometimes their interpretations of the law will permit agencies to adopt policies that accord with scientific consensus, sometimes not. Whether legal outcomes conform to what scientists desire should not matter. The high Court’s job is to get law right.

If anything has changed in recent years, the Supreme Court is becoming less derelict in its duty to decide legal disputes in a neutral and independent manner. It is less willing to show systemic bias, or deference, to administrative agencies’ seeking to expand their power. In some cases, the agency has asserted scientific expertise in support of its legal interpretation. But even if the agency’s scientific expertise is wholly correct, it is often not terribly relevant to the legal questions before the Court.

And what if a legal outcome really is out of step with scientific consensus? The remedy is not for the Court to ignore a statute’s plain meaning. Instead, Congress—the legislative branch—should take the lead by passing appropriate legislation grounded in science.

Policymakers can and should take into account scientific expertise, but the government does not have a monopoly on such expertise. Like self-interested industry bias, government bias must be properly scrutinized. More importantly, policymakers in the executive branch need to respect the limits of the authority granted to them by Congress. If an agency overreaches, that it was in furtherance of the scientific (or supposed scientific) consensus should be no defense. After all, the Court’s job is to say what the law is, not what it should be. If the Court gets it wrong, Congress can course correct by enacting new statutes reflecting current scientific expertise.