Concurrence Signals Some Justices Wary of Clipping Agency Power

An enigmatic concurring opinion by an unlikely group of justices could be a sign that at least some Supreme Court members aren’t ready to topple the so-called administrative state.

The 7-2 opinion on Thursday in Consumer Financial Protection Bureau v. Community Financial Services Association of America focused on the original meaning of the Constitution’s appropriations clause. The CFPB’s indirect funding scheme is consistent with that understanding, Justice Clarence Thomas wrote for the court.

Justice Elena Kagan, though, wrote a separate concurrence to emphasize the importance of “continuing tradition” in interpreting the Constitution’s meaning.

“The founding-era practice that the Court relates became the 19th-century practice, which became the 20th century practice, which became today’s,” Kagan wrote. She was joined by liberal Justice Sonia Sotomayor and conservatives Brett Kavanaugh, and Amy Coney Barrett.

Supreme Court watchers say that reasoning could lead the court to reject other administrative law challenges over the next several weeks that seek to disrupt longstanding practices.

“You have to read between the lines,” said appellate lawyer Raffi Melkonian, but it seems like the four justices are suggesting that the court isn’t going “to upend the way American government is done.”

Others say it’s too early to declare the end of the attack on the administrative state by conservatives, who view it as an overreaching progressive-led bureaucracy.

“The opinion is hinting at something, but we won’t know what until the other cases come out,” said Cornell law professor K. Sabeel Rahman.

Stability Conference

The Roberts Court has slowly chipped away at the power of administrative agencies and is considering more existential challenges to their authority that Rahman said the justices wouldn’t have taken seriously just a few years ago.

This term the justices are considering whether to cut back the Securities and Exchange Commission’s longstanding use of administrative law judges and pull back the decades-old deference that federal courts give to agency statutory interpretations.

These challenges, along with the CFPB case, are examples of “aggressive, off the wall legal theories entertained” by lower courts that are now making their way up to the Supreme Court, Rahman said.

Kagan’s concurring opinion could be an attempt to tamp down on such marginal theories.

The two conservative and two liberal justices in the CFPB concurrence formed what Melkonian called a “stability conference.” The suggestion is that just because someone comes in with a good argument about what the Constitution meant at the Founding doesn’t mean the court will throw out longstanding practice.

It “could be read as a message to lower courts and litigants,” Melkonian said.

All Originalists

The message invokes the legal theory known as originalism. It’s the idea held by many conservatives that law text should be interpreted according to their common usage at the time it was adopted.

Though the doctrine gained prominence in the 1980s, Kagan famously said during her 2010 confirmation that “we’re all originalists now.” She’s since then said the comment has been taken out of context, calling it a “stupid soundbite that’s been hanging over my head for a while.”

The comment came “after a long discussion about why I was not an originalist in the conventional understanding of that term,” she said in a 2023 conversation at Notre Dame. “My view that constitutional meaning evolves is consistent with the actual original understanding of what the document was meant to do and how it was meant to work.”

Kagan’s opinion in the CFPB case appears to buttress that idea by saying that continuing practice is also important to determining what the Constitution requires.

It “highlights originalism’s tendency to treat everything as a matter of abstract first principles, said the Brennan Center’s Director of Democracy Initiatives Thomas Wolf. Instead of looking at precedent, originalism “assumes from the jump that all of that can be rewritten.”

Kagan is suggesting instead that courts look at tradition rather than just the moment of ratification, or the few years surrounding that time, said Georgia State University law professor Eric Segall.

Justice Samuel Alito took issue with that idea. The “separation of powers mandated by the Constitution cannot be altered by a course of practice at odds with our national charter,” he said in his dissent in the CFPB case.

But the fact that Kavanaugh and Barrett, self-avowed originalists, signed on to the Kagan opinion is significant, Segall said. It suggests that “the courts new currency is much more tradition than originalist.”

“Justices who take this view obviously will hold fewer things unconstitutional than Justices who care only about pre-ratification sources,” Goodwin partner William Jay said in an email. Though he was careful to say that the opinion doesn’t mean the court will stay its hand in the other pending cases.

“This decision is welcome but it must be understood in context of the court’s hostility to the administrative state,” Rahman said.

The case is Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd., U.S., No. 22-448, 5/16/24.