Under the radar: The Supreme Court decision Brett Kavanaugh is most likely to overrule

Judge Brett Kavanaugh, President Trump’s nominee to replace retiring Supreme Court Justice Anthony Kennedy, is less likely to override Roe v. Wade than to rein in the agencies at the heart of the modern administrative state. Here’s why. In 1984, the Supreme Court decided in Chevron v. NRDC that unless Congress has spoken clearly on the subject of a regulation, the courts should defer to an agency’s decision as long as it is reasonable, even if the courts would have reached a different interpretation. Whenever a statute is ambiguous, the agency enjoys wide discretion. Anything that is not unreasonable lies in the zone of the permissible. As both an appellate judge and legal commentator, Kavanaugh has been critical of this decision, stating that Chrevron “has no basis in the Administrative Procedure Act” and represents “an atextual invention by courts.” In fact, he adds, the decision is “nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” Kavanaugh objects not only to the jurisprudence underlying the decision, but also to its consequences. “From my more than five years of experience in the White House,” he declares, “I can confidently claim that Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.”

[William A. Galston holds the Ezra K. Zilkha Chair in the Brookings Institution’s Governance Studies Program, where he serves as a Senior Fellow]