Ketanji Brown Jackson Blasts Supreme Court Ruling That “Wreaks Havoc”

U.S. Supreme Court Justice Ketanji Brown Jackson railed Monday against the decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, arguing in her dissent that the “flawed reasoning and far-reaching results” of the majority opinion “[wreak] havoc on Government agencies, businesses, and society at large.”

In a 6–3 ruling along ideological lines, the court decided that the clock on a statute of limitations for complaints against an agency regulation doesn’t begin when the regulation is put in place, but when the plaintiff is injured. The majority opinion was delivered by Justice Amy Coney Barrett, with all three liberal justices dissenting.

In her dissent, Jackson explained that this decision makes way for a torrent of litigation challenging long-settled statutes, in what could potentially be a massively destabilizing ruling against the federal government.

“After today, even the most well-settled agency regulations can be placed on the chopping block,” she wrote.

Under the new doctrine, for a regulation to be challenged, all one needs to do is create a new entity that is “injured” by the regulation. The plaintiff then has six years to pursue a legal challenge against the supposedly injurious rule. As easily as a new entity can form, a new challenge can be levied, culminating in a torrent of litigation that could overwhelm federal capacities, handing over all power to the judiciary.

“Any established government regulation about any issue—say, workplace safety, toxic waste, or consumer protection—can now be attacked by any new regulated entity within six years of the entity’s formation. A brand new entity could pop up and challenge a regulation that is decades old; perhaps even one that is as old as the APA itself,” Jackson wrote, referencing the Administrative Procedure Act, which was passed in 1946. “No matter how entrenched, heavily relied upon, or central to the functioning of our society a rule is, the majority has announced open season.”

While some agency actions rely on more specific statute of limitations rules, which could potentially shield them from the court’s ruling, it’s also likely that plaintiffs will be able to seek out far-right district court judges who will be more likely to rule in their favor against federal agencies.

In explaining the ramifications of the majority decision, Jackson referred to Friday’s decision obliterating the Chevron deference, severely undermining administrative law by requiring that challenges to ambiguous doctrine in agency statutes be heard in court.

“Seeking to minimize the fully foreseeable and potentially devastating impact of its ruling, the majority maintains that there is nothing to see here, because not every lawsuit brought by a new industry upstart will win, and, at any rate, many agency regulations are already subject to challenge,” Jackson wrote. “But this myopic rationalization overlooks other significant changes that this Court has wrought this Term with respect to the longstanding rules governing review of agency actions.”

“The discerning reader will know that the Court has handed down other decisions this Term that likewise invite and enable a wave of regulatory challenges—decisions that carry with them the possibility that well-established agency rules will be upended in ways that were previously unimaginable. Doctrines that were once settled are now unsettled, and claims that lacked merit a year ago are suddenly up for grabs.”

One clear example of this is the mifepristone ruling, when the court ruled earlier this month to temporarily preserve access to the abortion pill. But the case hinged not on whether people have a right to bodily autonomy but whether the plaintiffs had standing to challenge a federal agency’s decision. And that same question has already been applied to gun control in a lower court.

“The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government,” Jackson warned, and she urged Congress to pass protections “to address this absurdity and forestall the coming chaos.”

“It can opt to correct this Court’s mistake by clarifying that the statutes it enacts are designed to facilitate the functioning of agencies, not to hobble them,” she wrote.