WASHINGTON -- The Supreme Court's two leading conservatives staked out opposite stands Monday over whether judges should play a greater role in second-guessing regulations issued by "unelected bureaucrats" in federal agencies.
By a 6-3 vote, the court upheld a rule adopted by the Federal Communications Commission that says cities and counties must decide within five months on whether to approve an application for erecting a new wireless phone antenna. Los Angeles and San Diego had joined two Texas cities in challenging that rule as infringing their local zoning authority.
But this seemingly routine dispute set off a fight within the court over what Chief Justice John Roberts called "the headless fourth branch of government."
Since the Reagan era of the 1980s, conservatives have frowned on letting judges weigh in on regulatory disputes. They feared that liberal activists would use the courts to override decisions made by the executive agencies on issues such as environmental regulation or workplace rules.
Justice Antonin Scalia voiced this view in Monday's opinion. Courts should stand back and defer to agencies when they act within the scope of the law. To do otherwise invites "chaos," he said, because judges will be "tempted" to make public policy.
With Democrats in charge of the regulatory agencies, other conservatives have been voicing alarm about the unchecked powers of bureaucrats.
The chief justice voiced that view. "The danger posed by the growing power of the administrative state cannot be dismissed," he wrote, adding that federal agencies are "poking into every nook and cranny of daily life."
While Roberts called for judges to act as a check on federal regulations, Scalia dismissed his argument as "hollow" and "empty."