Clarence Thomas’ Agency Power Ruling Gets Supreme Court Ribbing

Advocates ripped into a 2005 Supreme Court ruling they say demonstrates how wayward the court’s case law has gone—and the author of the unpopular opinion got a front row seat.

During arguments on Wednesday, the justices considered overturning a bedrock principle known as the Chevron doctrine, which requires federal courts to defer to federal agencies when interpreting ambiguous statutes.

Chevron encourages volatility in the law because an “agency can kind of flip-flop and then force courts to flip-flop with them,” said Latham & Watkins’ Roman Martinez. He pointed to the court’s 6-3 decision in National Cable & Telecommunications Assn. v. Brand X Internet Services as the epitome of that volatility.

In Brand X, Justice Clarence Thomas wrote for a 6-3 court that an agency interpretation is entitled to Chevron deference, even if there’s a previous court decision going the other way.

“I love the Brand X case,” said Supreme Court veteran Paul Clement, because it “provides a perfect example of the flip-flop that can happen.”

“Brand X is a huge embarrassment for the government and the government’s friends,” Clement said. He noted that neither the government’s brief nor the amicus briefs in support of that side cite widely to Brand X because “gosh, it would be nice for that decision to just go away, wouldn’t it?”

The criticism of Brand X wasn’t limited to the advocates. Both Justices Neil Gorsuch and Amy Coney Barrett had concerns about the case and its implications.

“Brand X is a recipe for instability,” Gorsuch said, “because each new administration can come in and undo the work of a prior one.”

At one point, Thomas, sitting to the left of his colleagues, leaned forward and gave them a jovial stare.

“Sorry, Justice Thomas.” Barrett said to laughter.

To be fair, Thomas himself has called for the court to reconsider Brand X. It “is never too late to surrender former views to a better considered position,” Thomas wrote in a 2020 dissent from the court’s decision not to take up a case asking the justices to reverse course.

It wasn’t the only awkward moment in the courtroom on Wednesday.

Justice Elena Kagan asked Martinez about the original Chevron case, and whether the court reached the correct result in deferring to the Environmental Protection Agency.

In that case, the court was considering a rule adopted during the rocky tenure of EPA Administrator Anne Gorsuch. Martinez suggested that the court should have interpreted the statutory language itself. With “much respect to Justice Gorsuch’s mother’s EPA, Martinez added.

Gorsuch, staring at Martinez with his hand on his chin, didn’t smile at the remark.