Even if you don’t recognize the name Alliance Defending Freedom, you’re probably familiar with their handiwork. The ADF is a legal advocacy organization and Southern Poverty Law Center-designated hate group that has been racking up wins in some of the most noxious cases before the Supreme Court. Taking down Roe v. Wade, ending the legal right to abortion care after five decades? They were there, drafting the model bill that was the basis of the abortion ban upheld in Dobbs. The homophobic wannabe website designer case? They were there, too, representing Lorie “Graphic Design Is My Passion” Smith at the Supreme Court. The present challenge to the FDA’s long-standing approval of mifepristone? There they are again, trying to make abortion inaccessible nationwide.
Given that the ADF functions as a litigation boutique for Christian nationalism, it might seem odd that they’ve also popped up in Loper Bright v. Raimondo, an administrative law case ostensibly about fishery management that the Supreme Court will hear on January 17. In an amicus brief, ADF lawyers rail against federal agencies that are “weaponizing federal civil rights laws to impose radical gender ideology” and “weaponizing federal healthcare laws to violate the right to life”—claims that are neither based in reality nor relevant to preventing the overfishing of herring in the north Atlantic.
The ADF’s Kristen Waggoner speaks with reporters after the Supreme Court heard oral argument in 303 Creative v. Elenis, December 2022 (Kent Nishimura / Los Angeles Times via Getty Images)
But the ADF has a stake in the outcome of this case because of how its resolution could affect the bread-and-butter of the ADF’s docket: The explicit aim of the petitioners in Loper Bright is to overturn Chevron v. NRDC and end judicial deference to federal agencies’ interpretations of their congressional mandates, a result that would effectively give judges veto power over regulations with which they don’t agree. Put another way, the goal is to stop agencies from doing their jobs: agencies that make it possible to get birth control at a pharmacy, or to use insurance to access hormone therapy, or to keep your healthcare information from being handed over as evidence in a criminal trial, among many other examples.
Loper Bright seeks to upend the way government functions. In so doing, it functions as a vehicle for the conservative legal movement—including the ADF—to deny women control of their own reproductive systems, and erase trans people’s right to live with dignity.
The ADF’s amicus brief in Loper Bright, filed on behalf of a network of “Christian employers,” is best understood less as a legal argument and more as a series of gripes about policy outcomes they don’t like. It is also riddled with errors that gloss over how Chevron actually works. For example, Chevron is not a blank check—it requires judges to review agency interpretations for reasonableness, and allows them to strike down unreasonable exercises of power. Yet ADF claims that agencies use Chevron deference to “evade judicial review” altogether and “impose their personal political agendas.” Basically, the ADF’s ostensibly legal argument is that the Employment Opportunity Commission and the Department of Health and Human Services do not consistently interpret the law in ways that keep women barefoot and pregnant or eliminate trans people from public life.
The ADF isn’t the only frustratingly familiar conservative group involved with Loper Bright, as research from organizations like Democracy Forward shows. The ADF’s amicus brief sits alongside those submitted by America First Legal Foundation, led by former Trump White House official and current white supremacist Stephen Miller; the America First Policy Institute, also led by ex-Trump officials; and the Claremont Center for Constitutional Jurisprudence, where noted indicted Trump co-conspirator John Eastman is counsel of record. There’s also the deceptively-named National Right to Work Legal Defense Foundation (anti-union) and the even-more-deceptively-named Chamber of Commerce of the United States (no relation to the federal government.) As The New York Times reported on Tuesday, Loper Bright’s lawyers in the case have financial connections to petrochemicals billionaire Charles Koch.
Loper Bright brings together all flavors of conservatives—original recipe, sour cream and neo-Nazi, salt & vinegar & tax evasion, and so on—because they all stand to benefit from transferring political power to judicial reactionaries. Weakening the administrative state is central to the conservative legal movement’s work against a pluralistic democracy that responds to the will and needs of its people. And ending Chevron deference would make it open season for lawsuits challenging each and every regulation that serves the public interest, rather than the interests of the far right.
