A federal appeals judge from Colorado, the solicitor general of Missouri and a senior advisor to a Republican senator offered their thoughts on Tuesday about the U.S. Supreme Court’s most recent term, the magnitude of the court’s conservative lean and the impacts to the federal government’s regulatory powers going forward.

“People are saying, ‘Ah, it’s a blockbuster term.’ Well, what does that mean? Basically every term at the court is a blockbuster term,” said Judge Allison H. Eid of the U.S. Court of Appeals for the 10th Circuit. “By definition, they take the most important cases, they resolve them and we analyze them. But I do think this term might be a little different. I’m calling it a ‘blockbuster-plus’ term.”

Eid facilitated a panel discussion at Maggiano’s Little Italy in downtown Denver that was sponsored by the Colorado Lawyers Chapter of The Federalist Society. The group is a key player in the conservative legal movement, whose members were tapped in large numbers for judgeships under the Trump administration. Eid, an appointee of Donald Trump to the 10th Circuit, is a longtime member.

She elaborated that the “reaction” to the Supreme Court’s term has contributed to its significance, with cases addressing the ability of states to disqualify presidential candidates from their ballots and whether Trump is immune to federal criminal charges for his actions in office.

“President Biden has dedicated the remaining time he has as president to Supreme Court reform,” Eid added, outlining Biden’s recent proposal for term limits, mandatory ethics rules and reversal of the immunity decision. “I think just the reaction has made it blockbuster-plus.”

Among the other cases discussed were a pair of decisions in which the six Republican-appointed justices abolished “Chevron deference,” a 40-year-old legal principle requiring courts to defer to executive agencies’ reasonable interpretations of ambiguous laws when they craft regulations. The effect of eliminating Chevron deference is to give judges more authority, at the expense of regulatory experts, to weigh technical policy changes.

“The impact on the federal courts is great,” said Eid, referencing numerous decisions over the years that have implicated Chevron deference. “That’s just a huge piece for us in the 10th Circuit.”

Also participating on the panel were Nicholas Ganjei, the former acting U.S. attorney for the Eastern District of Texas and now the chief counsel to U.S. Sen. Ted Cruz, R-Texas; Allison Turbiville, counsel for Vail Resorts; and Josh Divine, the solicitor general for Missouri.

“The sort of key takeaway here is that the court has really cut back the power of federal agencies to interpret the laws that they administer,” said Turbiville, commenting on the elimination of Chevron deference. 

“I was working in the Senate in March 2020 when this major global event happened called COVID. And we passed in record time the CARES Act — just within a couple days, essentially — we passed this major piece of legislation,” said Divine, a former aide to U.S. Sen. Josh Hawley, R-Mo., and former clerk to Justice Clarence Thomas. “And I was there as these senators were intentionally inserting very vague language and then once this thing was passed, you called up your buddies in the administration and said, ‘We gave you tons of leverage here. We want you to interpret it this way.’ You can’t do that anymore.”

Divine added that “one of the big things from this might be a change in the incentives in the way Congress operates when passing statutes.”

Ganjei agreed, saying it “would require a bit more courage for Congress to actually say we’re gonna tackle the tougher questions” through legislation.

Divine also addressed the subject of lower courts issuing nationwide injunctions, such as when a Trump-appointed judge in Texas suspended the U.S. Food and Drug Administration’s longstanding approval of the abortion drug mifepristone last year. Divine said there is no Supreme Court decision condemning the practice, but he believed a majority of the current court is skeptical of it.

“I don’t know if or when it will be resolved soon. There’s definitely a lot of tension, a lot of differences among the justices, on this issue,” he said.

Divine further criticized the “niche cottage industry of journalists who are basically attacking the court.” He took issue with characterizations of the Supreme Court as delivering Republican policy wins on issues like shutting down student loan forgiveness — which Divine is litigating — curtailing affirmative action and eliminating the longstanding constitutional protection for abortion.

“If you look at the last two years, I think the case law demonstrably refutes that journalistic program,” he said, calling out a 5-4 decision last year in which the Supreme Court directed Alabama to comply with the Voting Rights Act in drawing new congressional districts. Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joined the three Democratic appointees in the majority.

“If this is a court that is hellbent on delivering Republican results, it’s really bad at doing that. You wouldn’t expect that kind of case from the Supreme Court if that’s what they are trying to do,” Divine added.

Progressive commentators have disputed the characterization of the “3-3-3 court” — one with ostensibly three liberal justices, three strongly conservative justices and three right-of-center justices — as underemphasizing the magnitude of conservative victories on issues historically important to the Republican Party.

One attendee asked whether Justice Amy Coney Barrett, the final Trump appointee to the court, is a “squish” because she has occasionally distanced herself from the conservative majority in high-profile matters, like the question of Trump’s constitutional eligibility to seek the presidency in light of his role in the Jan. 6, 2021 attack on the U.S. Capitol.

“She’s more skeptical of taking cases than some of the other justices are. You see that more as a judicial minimalist stroke throughout her philosophy. I would not say she’s a ‘squish,'” Divine responded. He added that Barrett tends to respond to calls for overturning existing legal precedent by saying, “You need to tell us what we should replace it with.”

Next month, Barrett will attend the 10th Circuit’s biennial conference in Colorado Springs, where Eid will interview her in the “Fireside Chat” portion of the event.