Scholar: Cases Show Supreme Court More Deferential To Executive

(RTTNews) - A series of recent Supreme Court decisions shows a bench increasingly willing to defer to the executive branch, according to a court scholar.

Andrew Pincus, a lecturer at the Yale Law School who has argued 16 cases before the high court, said that when it comes to federal agency regulations, the court has tended to be more accepting of agency expertise.

Speaking at a panel discussion of the recent Supreme Court term sponsored by the American Constitution Society for Law and Policy, said the trend was primarily illustrated by a series of five environmental rulings.

"I look at [several] things that really explain the outcomes in these cases," he said. "The first is deference to the executive branch. The government won four of the cases."

He added, "I think that tells you something about where the government is going."

In two of the cases, Pincus said, the court ruled that it would defer to the government's decision on regulations and jurisdiction, such as whether the Environmental Protection Agency or the Army Corps of Engineers had the authority to make rules.

One case in particular, regarding whether the navy could use sonar that is suspected of harming whales Pincus said showed a deference to the military expertise.

"I think majority says about five times that very senior military people have told us that bad things are going to happen if the navy can't practice in this way," he said. "We're going to defer very substantially to those representations."

What makes these cases particularly interesting, Pincus said, is that while the court is not expected to shift dramatically with the retirement of Justice David Souter, there is a new administration.

"What's interesting in that area is yes, business won, but we have a different administration now and deference to the executive may well cut the other way," he said.

In that light, Pincus pointed to the court's upholding of FCC fines against Fox Broadcasting over fleeting expletives.

"The court, again, upheld what the agency did even though it involved a change of position," he said. "The opinion for the court goes out of its way to say we're not really going to insist on agencies jumping through a lot of hoops when they change positions."

He added, "You put those cases together and, again, interesting running room for a new administration that may want to change a lot of positions. The court seems to, in that set of decisions, given an opening to lower courts upholding those positions and deferring to the executive branch views."

However, there are potentially constitutional issues that may affect the pattern, Pincus said.

"We don't know how the constitution's going to come in to play in terms of some of these environmental regulatory cases," he said.

He added, "This is a court that believes courts have a very limited role generally, but especially in challenges to government action."

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