It is popular for some political activists to lament the modern Supreme Court(1) but the 1970s and '80s Supreme Court had 5 justices to the left of Sotomayor. That led to a lot of bad law.

For trust in science the worst thing from that dark period was their ruling in 1984's Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, now commonly called "Chevron deference." 

The decision was so lopsided toward government, and therefore the environmental groups that collude with career government employees, that it gave the White House the power to create laws without needing Congress. It meant that a government agency could create regulations that act like laws if it was in their "mandate."

Want a new law but Congress won't pass it? Change an agency mandate. 

This ruling has spent decades eroding confidence in government science. The Obama administration was able to overrule its own scientists on things like the Deepwater Horizon oil spill and Yucca mountain using its agencies. We helped win at the Supreme Court when the United States Fish and Wildlife Service tried to tell a private landowner in Louisiana they had to tear down a forest - and then spend up to $34,000,000 to create a new one - for a frog that lived in Mississippi. Or else they'd never get a permit to build housing for people who wanted to leave New Orleans before the next Hurrican Katrina.

President Biden has taken agency incursions to the next level, which may be why it faces serious challenge for the first time. He used OSHA to force vaccinations on employees and the CDC to ban evictions for people who don't pay their rent. His EPA simply created a new regulation down at the detectable level of a pesticide and they don't need to ban it and deal with public comment. 

The problem is that the public thinks that is science when it is instead perhaps not even sloppy epidemiology. That has ripple effects. Why trust government on vaccines when you know that school lunches are political footballs? Food and Nutrition Service inside USDA can just say vegetarians are healthier and deny poor children perhaps the most balanced meal they might get each day.

Chevron deference needs to go, or at least have a much stronger standard than “permissible construction” when Congress has not explicitly ruled on that exact thing. There was never a reason Congress would rule on the National Marine Fisheries Service being able to board a herring boat at any time and demand an inspection - and then the company has to pay NMFS for the inspection. So NMFS was able to force it on companies using Chevron deference. Loper Bright is suing because it is wrong, but an appeals court of Democratic appointees upheld it. The company is arguing that the current two-step Chevron framework - if Congress hasn't acted, agencies can as long as it is undefined permissible construction - mean it has been widely abused.

Which it has. In lower courts, agencies are just handed a victory nearly 80 percent of the time using Chevron deference. That's not right, and certainly not historical "persuasive
authority" given to agencies prior to 1984. It is instead courts giving a way for agencies and therefore the President to bully science into its agenda, and that is not just in violation of Article III of the Constitution, it is ethically wrong.


(1) Mostly because it stopped America from being one of the only two countries in the world that had abortion on demand at any time during pregnancy and some states became almost as restrictive as...France. Mon dieu!