Liberal justices raise alarm about Supreme Court's weakening of federal agency power

WASHINGTON — Liberal Justice Sonia Sotomayor appeared visibly perturbed as she complained last week about a Supreme Court ruling that curbed the powers of the Securities and Exchange Commission.

Taking the relatively rare step of reading a summary of her dissenting opinion from the bench in open court, she made her strong feelings known about what has been dubbed the "war on the administrative state."

"Those of us who cherish the rule of law have nothing to celebrate,” she said, emphasizing the word "nothing."

The ruling was one of three delivered in the final week of the court's term that cast blows against the powers of federal agencies. All were decided 6-3 on ideological lines, with the court's conservatives in the majority.

And in all three, the liberal justices did their utmost to draw attention to their broader concerns about the court’s chipping away at the powers of federal agencies to issue regulations in areas such as the environment, worker safety and consumer protection.

In fact, they took turns.

After Sotomayor on June 27, it was Justice Elena Kagan's moment in the spotlight the next day. She authored the dissenting opinion as the court overturned a 40-year precedent that gave deference to federal agencies when the meanings of statutes are ambiguous.

Like Sotomayor, she also read a lengthy summary of her opinion from the bench, saying the ruling will cause a "massive shock to the legal system" by casting doubt on long-standing interpretations of law.

Then came Justice Ketanji Brown Jackson on Monday morning.

While most were waiting for the court's seismic ruling awarding former President Donald Trump some immunity for his acts as president, the court handed another win to business by making it easier to bring lawsuits challenging historic agency actions.

Following the lead of her liberal colleagues, Jackson, sounding at times annoyed, read her dissent from the bench, too. Conservative Justice Amy Coney Barrett, who wrote the majority opinion, watched on intently.

The implications of the ruling, Jackson said, are "simply staggering," in part because it will lead to a flood of lawsuits that could cripple federal agencies.

That the liberal justices were completely unified and each wrote an opinion led to “a striking series of dissents," said John Elwood, a lawyer who argues cases before the court.

Sam Sankar, a lawyer at Earthjustice, an environmental group, said: "The dissents didn’t splinter. They focused their energy. My guess is they collaborated. My sense is this was a team effort."

But Jennifer Mascott, a professor at Catholic University's Columbus School of Law and an NBC News contributor, said it was a "fool's errand" to read much into the unified nature of the dissents. Among other things, she noted that it is normal for the workload to be divided up among justices.

The practice of justices' reading summaries of dissenting opinions from the bench when they are particularly disgruntled by decisions is relatively rare, but it has happened for years.

One justice who made an impact with her dissenting opinions was Ruth Bader Ginsburg, who also spent her tenure as part of a liberal minority. Among the forceful dissents she read in court was one objecting to the 2013 ruling in which the court gutted a key provision of the Voting Rights Act.

Known for wearing decorative collars called jabots, Ginsburg even said she had a special one she wore when she was reading a dissent.

She explained the value of reading dissents from the bench in a speech in 2009.

"It signals that, in the dissenters’ view, the court’s opinion is not just wrong but grievously misguided," she said.

As for the dissenting opinions themselves, they can be persuasive both inside and outside the court, Ginsburg said. Sometimes, the draft of a dissenting opinion makes the justices reconsider, and the proposed ruling never sees the light of day.

Other opinions, Ginsburg added, are an appeal to what Chief Justice Charles Evans Hughes called "the intelligence of a future day."

And some are a call for action, such as Ginsburg's dissent in a sex discrimination case in 2007 that went against Goodyear Tire employee Lilly Ledbetter. She wrote that Congress should amend the statute in question, and two years later, President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law.

Jackson made a similar pitch in her dissent Monday, saying Congress could easily amend the law in question to ensure that newly formed companies cannot challenge agency rules that have been on the books for years.

"Congress still has a chance to address this absurdity and forestall the coming chaos," she wrote.

The impact of oral dissents is somewhat blunted by the fact that, although the court now livestreams audio of its oral arguments, audio of the opinion announcements is not broadcast live. It is released later for archival purposes.

Carolyn Shapiro, a professor at Chicago-Kent College of Law, said the liberal justices might need to take their show on the road by making public appearances criticizing the court’s decisions in order to reach a bigger audience.

“Doing something like publicly criticizing the court in a different forum would be a big shift for them and therefore would be newsworthy,” she said.