Justice Thomas rues missed opportunity to curtail government power

Supreme Court Justice Clarence Thomas in an unusual move on Monday issued a dissent that rebuked a decision that he authored 15 years ago.

Thomas on Monday explained how his views on the power of federal administrative agencies have evolved since he penned the 2005 decision in case known as Brand X, which reinforced a legal doctrine that has increasingly faced criticism from conservatives.

In that case, Thomas, writing for the 6-3 majority, sided with the Federal Communications Commission’s interpretation of a telecommunications law provision, rather than the reading of a federal appeals court.

This court term, the justices decided against taking up a case that would have revisited Thomas’s 2005 opinion in Brand X. On Monday, he dissented from his colleagues’ decision, saying he would have welcomed the opportunity.

“Although I authored Brand X, ‘it is never too late to ‘surrende[r] former views to a better considered position,’” Thomas wrote, borrowing a line from a 1950 case. “Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation.”

The court’s decision not to take up the newer case means it failed to garner votes from the requisite four justices.

Like Brand X, that newer case, Howard Baldwin v. U.S., raised issues related to so-called Chevron deference. That legal principle stems from a 1984 case and instructs courts to defer to interpretations by federal agencies when guidance from Congress is vague.

Thomas’s opinion on Monday puts him in league with the many conservative critics who blame the 1984 ruling in Chevron v. NRDC with helping to grow and empower the federal bureaucracy.

“Chevron compels judges to abdicate the judicial power without constitutional sanction,” Thomas wrote on Monday, adding, “Chevron also gives federal agencies unconstitutional power.”