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A Supreme Court case that protects the environment, health care, and food safety is at risk

JUANA SUMMERS, HOST:

Herring fishermen in the northeast don't want to be forced to pay for professional observers on their boats. They have sued, and that case is now before the Supreme Court, where protesters rallied today, urging the justices to uphold the precedent the fishermen object to.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PROTESTER: We object to this relentless power grab. Let me hear it again. We object.

UNIDENTIFIED PROTESTERS: We object.

SUMMERS: But the case isn't even really about fish, and it actually has far-reaching implications for the environment, health care and the financial industry. NPR's Carrie Johnson watched it from the courtroom today, and she is now here in studio. Hello, Carrie.

CARRIE JOHNSON, BYLINE: Hey, Juana.

SUMMERS: So, Carrie, enlighten me if you can. If this case is not about fish, then what is it about?

JOHNSON: You know, it took almost a half an hour for the topic of fish to come up at the oral argument in the court, and even that was kind of a passing mention. This case really is about federal regulation - what happens after Congress passes a law, a law that may not be clear about something. The question is, who gets to decide? Is it experts in federal agencies like the EPA or Health and Human Services, or is it federal judges? And under a framework that's been in place for about 40 years, federal agencies make those calls now. But big business groups want the court to throw out that precedent, which is known as Chevron deference.

SUMMERS: OK. And, Carrie, what is the argument for scrapping the precedent?

JOHNSON: Lawyers for the fishermen say things are really out of whack as they operate now. They say the agencies have too much power, power that should belong to Congress or to federal judges who are supposed to interpret the law and who do that all the time. Here's Roman Martinez, a lawyer for the fishermen.

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ROMAN MARTINEZ: We would respectfully suggest that the solution here is to recognize that the fundamental problem is Chevron itself. Interpretive authority belongs to the courts.

JOHNSON: He says the Supreme Court has really run away from the Chevron precedent for years now, and there's really no way to fix it. He says it might take a decoder ring to figure out how to apply the law properly here. And he told these justices, end it. Don't mend it.

SUMMERS: All right then. Carrie, that's the argument for getting rid of this framework. So tell us then, what's the case for keeping the precedent in place?

JOHNSON: Justice Elena Kagan really jumped on the lawyer for the fishermen. She asked him a bunch of really tough hypothetical questions like this one. There's a new product designed to promote healthy cholesterol levels. Would that be a dietary supplement or a drug? And then she asked him a bunch of questions about artificial intelligence. She was basically arguing, those are calls that should be made by experts at agencies, not judges. Here's more from Justice Kagan.

(SOUNDBITE OF ARCHIVED RECORDING)

ELENA KAGAN: It's best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations. And, you know, judges should know what they don't know.

JOHNSON: The Biden administration is arguing for the Chevron framework to stay in place, too. The solicitor general says that it's a bedrock part of administrative law that's been cited thousands of times over the years. She says if the Supreme Court overturns another big precedent, like they did with abortion, it's going to bring thousands of cases, cases that will swamp the courts and the Justice Department.

SUMMERS: And, Carrie, I know it's always tricky to predict how the Supreme Court's going to rule just based on the arguments, so I won't ask you to pull out a crystal ball here. But did the justices offer any clues to what we might see?

JOHNSON: Yeah, most of the court's conservatives seem really skeptical about keeping Chevron. Justice Neil Gorsuch, who already wrote this precedent deserves a tombstone, was pretty clear again today about wanting to get rid of it. So were Justice Brett Kavanaugh and Samuel Alito and Clarence Thomas, too. But Amy Coney Barrett, another Trump appointee, seemed really worried about opening the floodgates to more litigation if they got rid of this precedent. I didn't hear five votes to walk away from this 40-year-old case, but could be. We'll learn more about whether the justices want to chip away at it by the summertime, and that's when a decision is expected.

SUMMERS: NPR's Carrie Johnson. Carrie, thank you.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Carrie Johnson is a justice correspondent for the Washington Desk.
Juana Summers is a political correspondent for NPR covering race, justice and politics. She has covered politics since 2010 for publications including Politico, CNN and The Associated Press. She got her start in public radio at KBIA in Columbia, Mo., and also previously covered Congress for NPR.
Alejandra Marquez Janse is a producer for NPR's evening news program All Things Considered. She was part of a team that traveled to Uvalde, Texas, months after the mass shooting at Robb Elementary to cover its impact on the community. She also helped script and produce NPR's first bilingual special coverage of the State of the Union – broadcast in Spanish and English.
Elissa Harwood