“Textualism means you are governed by the text,” the doctrine’s chief proponent, the late Supreme Court Justice Antonin Scalia, explained in 2012. “Not whether the outcome is desirable, not whether legislative history says this or that.” To Scalia, the legislative process was sufficiently messy that you could read it to justify whatever interpretation you wanted. But since language can be ambiguous in a variety of ways (William Empson, addressing poetry, identified seven), and since legislators, unlike poets, must anticipate all sorts of situations in the future, statutory language can make Ezra Pound seem as straightforward as Dr. Seuss. Someone has to resolve legislative ambiguities, and within the regulatory realm, jurisprudence has for 40 years, following the Supreme Court’s 1984 ruling in Chevron v. NRDC, assigned that task primarily to regulatory agencies. The plaintiffs in Loper Bright and a companion case, Relentless, Inc. v. Department of Commerce, want to give the job to conservative judges.
You aren’t supposed to try to guess the outcome of a Supreme Court case based on justices’ questions at oral arguments, because asking a question isn’t the same as voicing an opinion. Supreme Court reporters always offer that caveat before they speculate on the outcome, so I’ll honor that tradition here. Koch and Co. would appear have four votes in favor of overturning Chevron (in declining order of fervor): Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Samuel Alito. The four votes against overturning Chevron are (again, in declining order of fervor) Justices Elena Kagen, Sonia Sotomayor, Ketanji Brown Jackson, and Amy Coney Barrett. That leaves it up to Chief Justice John Roberts, who in expressing doubt that Chevron was “much of an actual question on the ground” seemed a good bet to furnish the fifth vote necessary to overturn Chevron.