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# Unanimous SCOTUS Decision ‘Reassuring’: Post
- URL: https://www.fdaweb.com/unanimous-scotus-decision-reassuring-post/
- Published: 2025-04-30T12:00:00.000Z
- Updated: 2026-09-14T15:10:37.000Z
- Author: David McFarland
- Tags: FDA Policy/General, #legacy-id-D5159091

A “well-reasoned” recent Supreme Court opinion in a case involving FDA “is a welcome source of reassurance at a time when President **Donald Trump** is waging an unprecedented attack on regulatory agencies.” That’s the view of George Washington University School of Law professor **Richard Pierce**, writing in [*The Regulatory Review*](https://www.theregreview.org/2025/04/29/pierce-the-supreme-courts-reassuring-opinion-on-agency-decision-making/?ref=fdaweb.com), published by the University of Pennsylvania law school

Pierce says the high court upheld one of hundreds of FDA denials of applications to market millions of types of flavored e-cigarettes. While the decision involved e-cigarettes, he says it could be applied more generally to the review of applications for many types of regulated products.

Praising the court’s unanimity, Pierce says it was a “rare reminder that governmental institutions are sometimes capable of making nonpartisan decisions. At present, the judiciary is the only branch of government that is capable of making nonpartisan decisions on at least some occasions.”

The opinion in the case was written by Justice **Samuel Alito** and Pierce says it illustrates a “hard look” review, which he describes as a demanding approach to determining whether an agency’s action is arbitrary and capricious in which the court considers, in detail, the process through which the agency took the challenged action, the evidence supporting the action, and the agency’s stated bases for the action.

“Hard look review is well-suited to our extremely polarized political environment,” Pierce writes. “When a candidate of one party is elected to replace a president of the other party, the newly elected president attempts to reverse many of a predecessor’s major policy decisions. The incidence of this flip-flopping upon a change in administration has increased by 1,300 percent. No one’s interests are well served by a government that changes its position on many major issues every four or eight years. Hard look review of agency decisions provides a much-needed limit on flip-flopping. It precludes an agency from flip-flopping unless the agency can explain to the satisfaction of a reviewing court why it changed its position.”

Pierce says Alito’s opinion combined a rigorous version of hard look review with pragmatism and empathy. As part of the opinion, he says, the court reaffirmed each of these three holdings in *SEC v. Chenery*, which have been the subject of attacks by some conservative activists who are persistent critics of federal agencies:

- unless Congress has specified otherwise, agencies are free to develop regulatory standards either by general legislative rule or by individual order in an adjudication;
- an agency action cannot stand unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained; and
- the better course when an agency error is identified is for the reviewing court, except in rare circumstances, to remand to the agency for additional investigation or explanation.