Supreme Court Justice's Words Echoed in Case Before Him

U.S. Supreme Court Chief Justice John Roberts' words were echoed back to him by a top government official as the high court heard oral arguments in a major case that could overturn the Chevron precedent.

Solicitor General Elizabeth Prelogar concluded her opening remarks on Wednesday by telling the justices that overruling the long-standing precedent established in the 1984 case of Chevron v. Natural Resources Defense Council would cause a "shock to the legal system."

Roberts used similar words in his concurring opinion in the bombshell Dobbs v. Jackson Women's Health Organization decision that overturned Roe v. Wade, in which he wrote: "The Court's decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases."

The chief justice's decision to refer to the majority opinion as a "serious jolt" revealed that while he agreed Mississippi's abortion ban should have been upheld, he would have done so without formally overruling the constitutional right to abortion that had been established under Roe.

The solicitor general appeared before the court on behalf of the Justice Department on Wednesday as the justices heard oral arguments in Loper Bright Enterprises v. Raimondo, a case that is asking the high court to overturn the Chevron doctrine that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute.

Judicial politics expert Alex Badas told Newsweek that those making arguments before the U.S. Supreme Court often try to cite opinions or comments from the same justices in a strategic way that they think will help sway them to their side. Justices are more likely to vote in a litigant's favor if their opinions are cited, even if a justice is ideologically opposed to an argument, a 2022 analysis conducted by North Carolina State University's Elizabeth Lane and University of South Carolina's Jessica Schoenherr shows.

The paper, which analyzed cases presented to the court between the 1984 and 2014 terms, found that "sitting justices should be more likely to vote for the parties that cite them, and that probability should increase with each additional citation."

"Prelogar is targeting Roberts because she knows she will need his vote and at least one of the other conservative justices' votes to win the case," Badas said.

The three liberal justices—Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson—are expected to uphold the Chevron deference while the court's staunch conservatives—Justices Samuel Alito and Clarence Thomas—are expected to overturn it. That leaves Prelogar with Roberts as well as Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh.

Badas said Prelogar knows that if she is able to convince Roberts to uphold the Chevron deference, the chief justice may be able to convince Gorsuch or Barrett to do so too, meaning that she'd have the five necessary votes to win the case. At the same time, "Prelogar understands that if she cannot convince Roberts, she will likely lose the case and that the Court will invalidate [the] Chevron deference."

In Loper Bright Enterprises, a family-owned herring fishing company that operates in New England waters argues that the National Marine Fisheries Services does not have the authority to require fishermen to pay the salaries of federal compliance monitors.

Conservatives have long sought to overturn Chevron, arguing that it gives the federal government too much authority and regulatory power. If the court agrees to strike down the precedent, it is expected to fundamentally change the way administrative agencies implement rules and regulations.

On Wednesday, Prelogar argued that the doctrine sets the groundwork for how the three branches of government operate together and that overturning the precedent would lead to "endless litigation" of previously decided cases.

"Litigants will come out of the woodwork," she warned the justices.