The Supreme Court’s Utter Disregard for Science Is Somehow About to Get Worse

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The Supreme Court is one of the most scientifically illiterate bodies in government, but why don’t we let it take over federal regulation? That is the basic question behind Loper Bright Enterprises v. Raimondo, scheduled for argument next month at the Supreme Court, and it should scare you. To those only recently paying attention, the court’s disdain for the scientific consensus, as evidenced in cases like West Virginia v. EPA, may seem surprising. However, even before the installation of its conservative supermajority, the court had long viewed scientific evidence that runs contrary to its policy preferences with contempt.

Skepticism of an inconvenient scientific consensus is nothing new for the Supreme Court, particularly for the conservatives. In Stanford v. Kentucky, the 1989 case on the constitutionality of capital punishment for 16- and 17-year-olds, Justice William Brennan pointed out the conservative majority’s “evident but misplaced disdain” for scientific evidence, particularly that of the social sciences. In Lockhart v. McCree, Justice William Rehnquist took it upon himself to disregard 14 of 15 submitted peer-reviewed studies, stating that the only reliable study happened to be the one that supported his position, contrary to the scientific consensus. Chief Justice John Roberts has gone so far as to call certain fields “sociological gobbledygook.”

Conservatives’ dislike of science does not stop at social sciences, though. In recent years, conservative justices have made statements completely at odds with the scientific consensus, including saying that carbon dioxide is not a pollutant, and taking the position that a surface connection between navigable waters is necessary for pollution of wetlands to matter. There is a strong scientific consensus contrary to each of these contentions, but the conservative justices chose to disregard it in favor of their prior opinions.

This is one of the reasons that Chevron deference, which says that courts should defer to agencies’ reasonable interpretations of their controlling statutes, and which is at issue in the Loper Bright case, is so important. U.S. administrative agencies are staffed by experts in their fields, people who have dedicated their lives to the study of their respective sciences. Judges and other court employees, on the other hand, are experts in the law who ideally would rely on scientists to inform their opinions of scientific issues, and Chevron deference ensures this reliance. As Justice Stephen Breyer has written, “the law must seek decisions that fall within the boundaries of scientifically sound knowledge,” but also that “a judge is not a scientist, and a courtroom is not a scientific laboratory.” Judges cannot make scientifically sound decisions if they disregard the scientific consensus.

However, as Roberts said during the Dobbs v. Jackson, this court is more interested in “putting the data aside.” In Loper Bright, a decadeslong conservative crusade against Chevron deference, seeking to put more power in the hands of conservative judges skeptical of the policy recommendations arising from scientific research is coming to fruition. Conservatives’ main problem with federal agencies seems to be that the scientists and policy experts who staff them are the ones regulating—and increasing costs for—their wealthy allies.

While agency regulation is responsible for ensuring food safety, environmental health, workers’ rights, and more, it can also impose significant costs on corporations. Conservative donors and nonprofits connected to Leonard Leo have been pushing for the court to overturn Chevron for decades. Their investment appears to have paid off, with a majority on the court openly hostile to Chevron. Justice Clarence Thomas has even changed positions on the issue over time, turning against Chevron and hypothesizing that almost all regulations may actually be unconstitutional.

This opposition to Chevron is generally couched in terms of conservative ideas like the nondelegation and major-questions doctrines. Justice Brett Kavanaugh has described federal agencies as “threat[s] to individual liberty,” joined by many other conservatives in claiming that deferring to expert agencies is antidemocratic because agencies are less politically accountable than elected officials. Setting aside the fact that members of these agencies can be replaced and/or explicitly directed by elected officials, the major issue with this idea is its proposed solution, in which unelected judges are essentially the final word on science policy, granting themselves the power to second-guess the experts.

Chevron may be on the chopping block, but efforts have been made to codify the doctrine by statute, clarifying Congress’ intent that agencies should be empowered to exercise their best expert judgment in addressing the issues they are responsible for, without judges’ personal biases getting in the way. Others have considered stripping the court of jurisdiction over certain matters, which could be extended to laws turning on scientific consensus. Even further engagement by scientists and the public with the science that the court relies on could be helpful. Considering the court’s history with science, it is alarming that it wants to take a stronger hand in setting U.S. policy, but Loper Bright presents exactly that scenario, and those who care about science and public policy need to start planning.