The Goal Of The “Architects of the Supreme Court” Was Always Overruling Chevron, and not Overruling Roe
The New York Times published a revealing, but not surprising, survey of how the three Trump appointees to the Supreme Court came to be. The article makes crystal clear that the priority of Don McGahn, the White House Counsel, and Senator Mitch McConnell, was always the administrative state, and not social issues like abortion.
While much of the attention to the conservative-dominated court has been about the sweeping decisions it has made to roll back abortion rights and now greatly expand presidential immunity, that was never the main goal for the architects of the effort to pull the judiciary to the right.
For those who led the drive to place Justice Gorsuch and two other conservatives on the court during the Trump administration, a sweeping series of rulings by the Supreme Court this year that shrank the power of federal agencies was the true victory. Their longtime target, the so-called administrative state, has been beaten back with the overturning of the 40-year-old Chevron doctrine and a flurry of other decisions aimed at reining in federal government reach — just as they envisioned it.
McGahn acknowledges that Chevron was always the primary objective:
“None of this was an accident,” Mr. McGahn, a partner at Jones Day, said in an interview about the court’s landmark rulings on administrative law — an arcane area but one that was a cornerstone of his campaign to place jurists skeptical of federal power on the bench. “It was a way to corral the runaway bureaucracy to get judges in place who were actually going to read the law as it was written.”
And McConnell adds that these administrative law cases were the primary motivation for FedSoc lawyers, and not social cases:
Limiting the power of federal officials was a longstanding goal of members of the Federalist Society, the conservative group seen as an incubator for the type of judges that Mr. McGahn and others sought when they moved to quickly populate the courts with conservative jurists after Mr. Trump’s election.
“Dismantling the administrative state and empowering people who are actually elected to make decisions has been the motivating force” for nearly every “Federalist Society-type lawyer,” Senator Mitch McConnell, the Kentucky Republican and minority leader, said in an interview. . . .
“I think the left thought that all we ever talked about was Roe v. Wade,” Mr. McConnell said. “Frankly, I can’t even remember it coming up. This was the unifying issue,” he said of the attempt to rein in federal agencies.
McConnell is largely correct. After the 2021 Federalist Society Lawyer’s Convention, I wrote about the split among members with regard to abortion. The old guard were fixated on issues like Chevron, while the younger members realized that overruling Roe was on the horizon. In hindsight, Dobbs has been an unmitigated disaster for Republican politicians–no wonder McConnell and others did not pursue that cause. They knew what would happen when the dog finally caught its tail. But McConnell is correct that Gorsuch and Kavanaugh were not selected for their views on abortion.
How did McGahn look for potential justices? Well, for at least two of the nominees, he looked to their records:
Mr. McGahn had first grown leery of the extent of agency regulatory power during his own stint as a member of the Federal Election Commission. When he became White House counsel for Mr. Trump, he played a central role in vetting candidates for the Supreme Court and recommending them to the new president.
He searched for potential nominees who had demonstrated a zeal for challenging the reach of federal agencies and backed it up with strong legal arguments and decisions.
“It’s not enough to say the right things in public speeches,” Mr. McGahn said in November 2017 remarks to the Federalist Society, as he laid out his strategy for what had come to be known as deconstructing the administrative state. “Judges must apply those principles in concrete cases.”
In 2015, Randy Barnett and I wrote a guide for picking Supreme Court justices in the Wee