Predicting Supreme Court Behavior Towards Executive Agency Power

• In Event: Separation of Powers and Interbranch Relationships

Abstract

On January 12th, 2021 the United States Supreme Court granted the Food and Drug Administration’s request to reinstate the requirement for the in-person-retrieval of the drug, Mifepristone, a pill used to terminate pregnancy within the first 10 weeks. The Trump administration’s decision to support the reinstatement of the in-person requirement follows another recent example of executive agency decisions regarding women’s rights, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. This case focuses on the exclusion of contraception from healthcare plans on the basis of religious exemption from a portion of the Women’s Health Amendment of the Affordable Care Act. In both cases, the Supreme Court sided in support of the executive agencies. Are these cases indicative of future Supreme Court decisions to reaffirm executive agency power? And if so, how can we expect the Supreme Court to rule on such cases under the new Biden administration?
Jeff Yates discusses the relationship between the Supreme Court and executive agencies in his book, Popular Justice: Presidential Prestige and Executive Success in the Supreme Court, noting that “consistent with the attitudinal model of judicial decision making, it has been found that justices are more apt to rule against agencies when agency action does not comport with their sincere ideological preferences” (Yates, 2002). Further, Martin Shapiro argues in his book, The Supreme Court and Administrative Agencies that Supreme Court decisions regarding the actions of agencies are inherently political due to the perception of how agencies are supposed to run (Shapiro, 1968). In a comprehensive analysis of Supreme Court decisions regarding federal agencies, Reginald Sheehan finds that “the policy values of the Court have a significant impact even in the area of agency policy” (Sheehan, 1992). This research provides a contemporary addition to the current scholarship on the behavior of the United States Supreme Court towards executive agencies and includes a unique secondary focus on women’s rights.
This paper analyzes the details and language of both Supreme Court cases, Food and Drug Administration, et. al. v. American College of Obstetricians and Gynecologists, et. al. and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania in order to determine whether evidence exists to suggest predictive behavior on the part of the Supreme Court in regards to executive agency power and women’s rights.

Author

• Madison Schroder