A SIMPLE MATTER OF TEXTUAL CONSTRUCTION:

Chief Justice John Marshall, established the primacy of the Supreme Court, as Hamilton saw it, with the foundational 1803 decision Marbury v. Madison. There, he ruled not only that the Court could declare acts of Congress unconstitutional, but also that courts could interpret the laws. These two points, never subsequently challenged, reified Hamilton's assertion that judges were to be the "Guardians of the Constitution."

There was little change in the structure of the government, or the respective roles of the president and Congress, until the Progressive Era, from about 1880 to 1920, when Woodrow Wilson and Theodore Roosevelt argued for major changes in the government's structure and role in the economy. During this period, the Interstate Commerce Commission, the Food and Drug Administration, and the Federal Reserve were established to address specific issues that had arisen as the US economy grew quickly. But aside from a few tariff cases, there was little need for the judiciary to interfere in the structure or operations of the government.

That changed with the Great Depression and the New Deal, when the Supreme Court--whose members included distinguished jurists such as Louis Brandeis and Benjamin Cardozo as well as Chief Justice Charles Evans Hughes--ran head-on into the policies of FDR and the progressive Democratic Congress. This confrontation produced two instances--Panama Refining v. Ryan and Schechter Poultry v. United States--where the 1935 Court determined that acts of Congress were unconstitutional because they delegated too much legislative authority to administrative agencies in violation of the Constitution. 

These decisions and others caused President Franklin D. Roosevelt, after the huge Democratic Party victory in 1936, to propose a Court-packing plan. Although Court-packing itself failed, it changed the game. Every member of the 1935 Supreme Court resigned between 1936 and 1941, to be replaced by Roosevelt-appointed justices much less willing to take on the elected branches. 

From then on, the Court assumed a more accommodating posture, finding authority for the vast number of administrative agencies established in and after the New Deal. The Court's reticence in this respect probably reached its peak in 1984, with Chevron v. Natural Resources Defense Council. There, a unanimous Court declared that "Sometimes the legislative delegation to an agency is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation" by the agency. 

Here, with what became known as "Chevron deference," the Court was directing lower courts to accept the administrative agency's interpretation of its statutory authority--if reasonable--and opened the door to the vast expansion of the administrative state that we see today. In short order, Chevron became the most cited and interpreted case in administrative law, and administrative agencies reached their greatest level of authority, issuing more than 3000 rules and regulations every year after 1989. 

What might be called a constitutional awakening, or at least a renewal of the Supreme Court's interest in its role as guardian of the Constitution, may have begun in 2013, with City of Arlington v. FCC. There, in a challenge to Chevron deference, Chief Justice Roberts (joined by Justices Kennedy and Alito) wrote that  "We do not leave it to the agency to decide when it is in charge." 

Significantly, in the same decision, the Chief Justice reiterated Hamilton's view in Federalist 78 that the judiciary has a special role as guardian of the Constitution: it "is the obligation of the judiciary not only to confine itself to its proper role, but to ensure that the other branches do so as well."

Tweet   @brothersjudd