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.

The divide arose when the court, by a 6-3 vote, upheld a rule adopted by the Federal Communications Commission that says cities and counties must decide within five months 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 on their local zoning authority.

The wireless industry celebrated a victory. The rules require local decisions “with reasonable time frames and help the industry deliver fast and reliable service to all Americans,” said Michael Altschul, general counsel for CTIA-the Wireless Assn.


A lawyer who represented Los Angeles and Arlington, Texas, called the ruling a disappointment but not a final defeat. Cities may still reject proposals for new cellphone towers or wireless antenna.

“We think Congress left this to be decided city by city,” said Matthew Schettenhelm, a Washington attorney.


This seemingly routine regulatory dispute set off a major fight within the court over what Chief Justice John G. Roberts called “the headless fourth branch of government.”

Since the Reagan era of the 1980s, conservatives have frowned on letting judges freely weigh in on regulatory disputes. They worried 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 majority opinion. Courts should stand back and defer to agencies when they are acting within the scope of the law, he said, relying on a 1984 decision in Chevron vs. Natural Resources Defense Council. To do otherwise invites “chaos,” he said, because judges will be “tempted by the prospect of making public policy.”

But now that Democrats are in charge of the regulatory agencies, other conservatives are sounding an alarm over the unchecked power of regulators.


The chief justice voiced that view in a lengthy dissent in city of Arlington vs. FCC. He said the so-called independent agencies like the FCC can act as legislators, executives and judges when they set rules and require others to follow them.

“It would be a bit much to describe the results as the very definition of tyranny, but the danger posed by the growing power of the administrative state cannot be dismissed,” Roberts wrote.


“With hundreds of federal agencies poking into every nook and cranny of daily life,” he said, citizens need an “effective safeguard against agency over-reaching.”

During the court’s argument in January, Roberts questioned whether “unelected bureaucrats” should have such broad regulatory authority. On Monday he rejected Scalia’s contention that he was proposing a “judicial power grab.” The court’s task is to decide the law and make sure regulators are following it, Roberts said.


“We do not leave it to the agency to decide when it is in charge,” he concluded. Justices Anthony M. Kennedy and Samuel A. Alito Jr. signed on to the dissent, saying judges should rein in regulators.

Scalia shot back that the Roberts’ dissent “reveals the hollowness of its theory” because it would force judges to second-guess routine regulations.


“Judges should not waste their time in the mental acrobatics” needed to decide such regulatory disputes, he said. The court’s liberal justices, who tend to support federal regulations, joined with Scalia, as did Justice Clarence Thomas.

This disagreement over agency regulations is likely to flare up again in the next few years.


President Obama is in his second term, but the court has yet to see many cases challenging regulations that arose from his initiatives. The implementation of the healthcare law, however, is likely to spur many such cases.

Then the justices will have to decide whether to defer to regulations issued by Obama’s agencies or skeptically question whether the agencies have overstepped their power.


david.savage@latimes.com