Federal Courts and Nominations

OP-ED: Trump Says “Experts Are Terrible.” Does the Supreme Court Agree?

“The experts are terrible,” Donald Trump said at one point during his 2016 presidential campaign. This was a statement about foreign policy expertise, but it could reasonably be applied to Trump’s view of experts in lots of fields, from climate change to trade policy. Sadly, he is not alone in that view. In a trio of blockbuster cases set to be decided in the next six weeks, we will soon find out if the Supreme Court shares the president’s anti-expert opinion.

First, in Kisor v. Wilkie, the court is considering whether to overturn decades-old precedents that hold that courts should defer to federal agencies’ reasonable interpretations of their own regulations—regulations that generally reflect the agencies’ expertise. This form of deference—and a related form that requires courts to defer to agencies’ reasonable interpretations of ambiguous statutes—has long played an important role in the federal government’s ability to regulate big businesses and protect consumers, the environment, workers, and more.

Again, one of the reasons why courts have long deferred to agencies’ reasonable constructions of ambiguous regulations and statutes is because they have more expertise about the subjects they’re regulating than federal judges do. As a brief by administrative law scholars put it, agencies “possess technical and policy expertise that reviewing courts generally lack.”

At oral arguments in the case, the court’s more liberal members repeatedly made this point. Responding to an attorney’s assertion that there was no “underpinning” for the deference doctrine at issue, Justice Elena Kagan responded with incredulity: “It didn’t have any underpinning? Its underpinning is obvious. … Its underpinning is agency expertise.” And Justice Stephen Breyer made the point particularly colorfully, discussing a prior case in which the “Court deferred to the understanding of the FDA that a particular compound should be treated as a single new active moiety, which consists of a previously approved moiety, joined by a non-ester covalent bond to a lysine group. Do you know how much I know about that?”

Yet depending on what the Supreme Court does in this case, soon federal courts—rather than expert administrators—may be deciding when compounds should be treated as new active moieties. And there’s reason to worry about what the court will do. Both of President Donald Trump’s appointees to the court have long expressed skepticism about these sorts of judicial deference doctrines. Indeed, when Neil Gorsuch was nominated to the court, he was celebrated by the business community for his hostility to these doctrines.

There’s reason to worry about what the court will do.

Kisor is by no means the only case in which the court’s views on expertise will come into play. In Common Cause v. Rucho and Benisek v. Lamone, the court is considering whether extreme partisan gerrymanders are unconstitutional. Courts around the country have been increasingly saying so, and for good reason: The Framers of our nation’s charter established a system of government in which the people choose their elected representatives, not the other way around. Extreme partisan gerrymandering, which subordinates adherents of a disfavored political party and degrades their right to vote, cannot be squared with the text and history of the Constitution.

Notwithstanding the compelling arguments that extreme partisan gerrymanders violate the First and 14th amendments, the Supreme Court has long been reluctant to bless judicial intervention in this sphere for fear that courts will not be able to identify a manageable standard for deciding these cases. Here’s where the experts come in. Political scientists have developed ways to measure the effect of partisan gerrymandering and thereby show just how much extreme partisan gerrymanders can skew elections and harm voters.

When the court took up this issue last term, though, Chief Justice John Roberts derisively described these tools as “sociological gobbledygook.” Indeed, he went even further, expressing elaborate concern that the public wouldn’t trust judicial decisions that took account of such evidence:

[I]f you’re the intelligent man on the street and the Court issues a decision, and let’s say the Democrats win, and that person will say: Well, why did the Democrats win? And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes. And the intelligent man on the street is going to say that’s a bunch of baloney.

In other words, to the chief, public skepticism about expertise was a potential reason for the court to leave partisan gerrymanders alone.

At this year’s oral argument, the chief justice didn’t make that same point—unsurprisingly, given that he was chastised by the American Sociological Association for his comments—but the court continued to grapple with the question of how much partisan gerrymandering is too much and whether courts can answer that question. What the court decides may depend, in part, on whether the court is willing to trust the tools developed by experts.

Finally, in New York v. U.S. Department of Commerce, the court is considering whether the Trump administration’s addition of a citizenship question to the 2020 census is unlawful. The Constitution mandates that every 10 years the federal government count all persons living in the country, and Congress has passed laws designed to protect the accuracy of that constitutionally mandated count.

When Commerce Secretary Wilbur Ross decided to add the citizenship question to the census, he did so over the objections of the experts within the Census Bureau. Those experts advised him that adding the citizenship question would discourage immigrants from responding to the census and thereby undermine the very thing the Constitution mandates: an accurate count of all persons living in the United States.

The tension between Ross’ decision and what the experts at the Census Bureau advised was a constant theme at oral arguments in the case. The attorneys challenging the addition of the citizenship question repeatedly invoked the Census Bureau “experts” in explaining why Ross’ decision was unlawful. And the court’s more liberal justices made the point as well. Breyer, for example, said, “The conclusion of the Census Bureau remains that adding the question … produces worse … data on citizenship than just using the administrative data alone … ” And Kagan pressed the administration’s lawyer on what reasons the secretary had for deviating from the experts’ conclusions.

Yet some of the court’s conservatives seemed to suggest that the secretary could disregard his experts’ conclusions even if he didn’t have any reason for doing so. How the court ultimately decides this case may turn, in part, on whether a majority of the court’s justices are willing to accept that proposition.

The court’s decisions in all of these cases will have profound consequences for the country—shaping how effectively the federal government can operate, how fair our elections are, and how accurate our census data is. Let’s hope the experts’ views carry some weight with the justices.

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