By Carol Khorramchahi
Boston University News Service
The Supreme Court’s conservative supermajority has remade the balance between courts and federal agencies, most dramatically when it overruled Chevron deference in Loper Bright v. Raimondo, directing judges to interpret ambiguous statutes for themselves rather than deferring to agency expertise. That 2024 ruling elevated judicial power over the administrative state and set the stage for the next wave of challenges now moving through the lower courts.
What’s at stake
In the wake of Loper Bright, litigants are testing how far the Supreme Court will go in re-centering power in the judiciary. One front involves the nondelegation doctrine, the idea that Congress can’t hand too much policymaking discretion to agencies. A case targeting the FCC’s authority to assess industry fees has been framed by critics as a vehicle to revive nondelegation, which could force Congress to legislate in far more detail and limit agencies’ ability to act without crystal-clear instructions. Supporters say this restores constitutional accountability, while opponents warn it could paralyze governance and push more policy questions into the courts.
Another front is agency adjudication. In the 2024 case SEC v. Jarkesy, the Supreme Court held that defendants facing civil penalties are entitled to a jury trial in federal court, curbing the SEC’s in-house tribunals and signaling skepticism toward similar enforcement regimes across the government. Together with Loper Bright and the Supreme Court’s 2022 “major questions” ruling in West Virginia v. EPA, limiting expansive regulatory moves without clear congressional text, the pattern is unmistakable: less agency leeway, more judicial say.
Why now?
Conservative legal thinkers have long argued that the modern administrative state erodes the separation of powers. With six justices broadly sympathetic to that critique, plaintiffs are bringing cases calibrated to narrow agency discretion further. As The Free Press recently put it in asking whether the court is poised to reject long-standing race-based redistricting rules, the justices are again being asked to redraw constitutional lines with sweeping practical effects — this time on voting rules rather than regulation. It’s a different issue, but the same throughline: the court’s willingness to revisit entrenched doctrines.
How a shift in judicial power could work
- From expertise to text: After Loper Bright, courts no longer treat agency interpretations as binding when statutes are vague. Agencies will have to persuade judges case by case, under a weaker, Skidmore-style “power to persuade.” Expect more lawsuits and slower rulemaking calendars.
- From in-house courts to Article III: Jarkesy pushes enforcement out of agency tribunals and into federal courtrooms, raising costs for the government and changing leverage in settlement talks.
- From broad delegations to narrow mandates: If a revived nondelegation rule gains five votes, Congress will have to legislate with far more specificity or watch judges strike down broad grants of power, shifting policymaking gravity away from agencies and toward the judiciary — and, indirectly, Congress.
The democracy and trust question
Rewriting who decides, experts or judges, has democratic costs and benefits. Proponents say elected lawmakers should make big choices and that judges enforcing clearer statutes enhance accountability. Critics answer that Congress often can’t or won’t legislate at that level of detail, so disabling agencies effectively hands policymaking to life-tenured judges and to litigation financed by well-resourced interests.
Public opinion underscores the stakes. Views of the Supreme Court remain near historic lows, with half of Americans unfavorable as of September 2025; a record share now says the Supreme Court is “too conservative.” Confidence also splits sharply by party. Sustained moves that shrink the administrative state could deepen those divides — or, if policy outcomes feel more legitimate, gradually rebuild trust.
What to watch next
- Nondelegation, revived? Keep an eye on agency-authority cases percolating in the lower courts, including challenges to FCC financing and other fee or rulemaking powers, that could give the justices a clean vehicle.
- Major questions, expanded? Litigants are urging the Supreme Court to apply its 2022 climate ruling beyond energy and finance, any time an agency claims a new, big power without explicit text.
- Separation of powers in enforcement. After Jarkesy, expect copycat challenges at agencies that rely on administrative law judges, from labor to consumer protection.
Bottom line
The Supreme Court doesn’t need a single blockbuster to shift power; it’s doing it through a sequence: major questions → Jarkesy → Loper Bright → (possibly) nondelegation. Each step transfers discretion from agencies to Article III courts and demands clearer instructions from Congress. Whether that restores constitutional balance or hobbles modern governance is the argument of the moment: one that will shape how American democracy actually works long after this term ends.
