This judicial populist view of government imagines a strict separation between law and politics. It elevates the president, who is selected in a nationwide election, to embody the people’s will and rule over the political sphere with little interference. The Supreme Court, with its power to say what the law is, rules over the legal one.
Note what this vision leaves out: legislatures and agencies, our primary institutions for considering divergent interests and views, mediating disputes and reaching compromises key to democratic governance. Agencies are required to provide opportunities for public participation, respond to significant comments, and justify their decisions, which a court can overturn for being legally impermissible or simply arbitrary. These are much stronger strictures than those that constrain our courts or even our legislatures.
Eliminating Chevron would fit hand in glove with judicial populism. A judicial populist opinion might cast bureaucrats as arrogant and impervious to the voice of the people. Of course, regulations often govern the relations of different social groups and can even protect the interests of some people (like consumers or employees) from the domination of others (like the financial industry or employers).
Instead of acknowledging that regulatory statutes are purposely broad to allow different interpretations to emerge through discussions over time, a judicial populist approach would hold that there is one true meaning to the law — a meaning courts get to announce once and for all.
That is why judicial populist rhetoric pervades textualism and originalism, theories of legal interpretation that insist that they alone can divine a law’s one true meaning and argue against considering its wider social contexts or effects.
Those who are explicit about the choices they make are then easily derided as activists. For instance, in a 2017 case, Chief Justice John Roberts questioned whether it would be legitimate for the court to limit partisan gerrymandering. After all, that would mean that the court itself “will have to decide in every case whether the Democrats win or the Republicans win.” He implied that the less activist option was not to intervene. Yet if the status quo violates the rule of law and obstructs equal political participation, then not intervening is itself an important policy choice.
Similarly, in oral arguments in Dobbs v. Jackson Women’s Health Organization (concerning a Mississippi law that would ban most abortions after 15 weeks of pregnancy), Justice Kavanaugh repeatedly suggested that overturning precedents recognizing the right to terminate a pregnancy would be the court’s most neutral option because the Constitution is neutral on abortion. But changing a half-century status quo is hardly neutral; in fact, there is no neutral option here.