u/_RyanLarkin

Summary:

Surgical assistants are exploiting the No Surprises Act, a law meant to protect patients from surprise out-of-network bills, to win huge arbitration payouts—sometimes up to 25 times what the operating surgeon makes, versus the standard insurer fee of 16% of the surgeon’s pay.

How it works: out-of-network assistants file for arbitration (intended for emergency situations) instead of accepting normal insurance rates, and arbitrators often grant inflated awards. In one case, a Wisconsin practice split a 2024 spinal fusion surgery into 11 separate bills, winning $196,215 total in arbitration ($125,058 to the surgeon, $70,707 to his assistant) versus a typical payout of about $9,310 and $1,562 respectively.

In another, a Manhattan surgical assistant married to the operating surgeon has earned 6 to 224 times his pay on procedures they perform together.

Patients aren’t affected directly (they still pay normal in-network rates), but insurers say these payouts are driving up premiums for everyone. Even some assistants who benefit from arbitration call the largest awards “way out of line” and unsustainable for healthcare costs.

Has the Roberts Court Expanded Its Own Power Using the Rhetoric of Restraint?

INTRODUCTION

The Roberts Court has cultivated a carefully constructed image of judicial restraint. Chief Justice Roberts famously described the judicial role as simply “calling balls and strikes.” The court is just a neutral umpire applying rules it didn’t make to facts it didn’t choose. But a close examination of three of its most consequential moves tells a different story. Through the major questions doctrine, Dobbs v. Jackson Women’s Health Organization (2022), and Loper Bright Enterprises v. Raimondo (2024), the Court did not retreat from power. It seized more of it. And the shadow docket has allowed it to exercise that power at emergency speed, without the deliberative constraints it demands of every other institution in American government. The rhetoric of restraint has become the most effective cover for its opposite.

THE MAJOR QUESTIONS DOCTRINE

The major questions doctrine holds that when an agency claims authority to decide issues of vast economic and political significance, courts require Congress to have granted that authority clearly and specifically. The Roberts Court formalized it in West Virginia v. EPA (2022) and has since applied it to strike down significant regulatory initiatives across environmental, public health, and social policy.

The doctrine has serious intellectual defenders, and its core separation-of-powers logic is not frivolous. But its application reveals a disqualifying asymmetry. It has been invoked almost exclusively to block regulatory action, never to require explicit congressional authorization for deregulatory moves of comparable scale. The ratchet turns only one direction, against government action, and that pattern maps consistently onto conservative policy preferences rather than any neutral principle. More fundamentally, the doctrine demands from agencies precisely what the Court does not demand of itself: explicit authorization, transparent reasoning, and procedural accountability. The Court invented the doctrine from a constitutional text that mentions none of it, and faces no equivalent constraint in doing so.

DOBBS v. JACKSON WOMEN’S HEALTH (2022)

Justice Alito framed Dobbs as an act of judicial humility, returning abortion policy to democratic processes and correcting the overreach of Roe and Casey. The humility argument collapses under scrutiny.

The Court didn’t just overturn Roe. It articulated a sweeping new framework for which unenumerated rights deserve constitutional protection, holding that only rights deeply rooted in the nation’s history and tradition qualify. This gives the current Court and its successors vast power to decide which liberties Americans possess. The decision also didn’t return power neutrally to democratic processes. It returned power to state legislatures specifically, the venue most favorable to restriction, which was itself a political choice dressed as constitutional principle.

Stare decisis was effectively gutted as a meaningful constraint. The Dobbs majority said the bar against overturning settled precedent doesn’t apply when the original decision was wrong enough – but left the Court itself as the sole judge of that question. Justice Thomas’s concurrence made the full reach of the reasoning explicit, arguing the same logic should apply to Griswold, Lawrence, and Obergefell. The majority disclaimed that intention, but the framework it adopted is available to future majorities regardless. And when the Court overturns a 50-year precedent explicitly reaffirmed a generation earlier, it signals that no precedent is truly safe, forcing litigants, legislators, and lower courts to constantly anticipate and accommodate whatever the current majority might want. That agenda-setting influence is itself a form of power.

LOPER BRIGHT ENTERPRISES v. RAIMONDO (2024)

Chief Justice Roberts framed overruling Chevron as restoring the proper constitutional order: courts interpret law, agencies execute it. Chevron deference, he argued, had improperly abdicated judicial responsibility. Overruling it was presented as the Court simply doing its job.

What it actually did was transfer final interpretive authority over the entire regulatory state to the judiciary. The administrative state governs virtually every domain of modern American life. Banking regulation, drug safety, environmental protection, telecommunications, workplace safety, immigration, financial markets…all of it rests on agencies interpreting enabling statutes written with inevitable ambiguity. Under Chevron, agencies with relevant expertise made reasonable interpretive calls, subject to political accountability through the presidency. Under Loper Bright, courts decide. The FDA’s interpretation of what counts as a drug, the SEC’s interpretation of what constitutes a security, the EPA’s interpretation of what counts as a pollutant…all of it now subject to de novo judicial review by generalist lawyers with no relevant technical expertise. These are not abstract legal questions. They are technical policy determinations, and transferring final authority over all of them to an unelected, unaccountable institution is an enormous concentration of power.

The three doctrines together

The major questions doctrine says courts will not defer to agencies on the most consequential regulatory decisions. Loper Bright says courts will not defer to agencies on any statutory interpretation. Dobbs says the Court will not defer to its own prior commitments when the current majority decides those commitments were wrong. Together they create a judiciary with maximum authority, freedom from precedential constraint, and no procedural accountability, while describing each individual move as reluctant constitutional housekeeping.

THE SHADOW DOCKET

The shadow docket refers to Supreme Court decisions made outside the normal merits process: emergency stays, summary reversals, and other orders issued without full briefing, oral argument, or signed opinions explaining the reasoning. Its use has expanded dramatically since 2017, and it ties everything else together by removing the last procedural constraints on how the Court exercises the power it has accumulated.

The entire justification for the major questions doctrine is that consequential decisions require clear reasoning and transparent process. The Court demands this of agencies while making enormously consequential decisions on the shadow docket with one-paragraph orders and no reasoning at all. When it stayed the Biden OSHA vaccine mandate before full merits review, it immediately affected workplace safety rules for over 80 million workers. No explanation was required.

The shadow docket also creates what amounts to an anticipatory veto. Agencies self-censor and water down ambitious rules because the threat of an immediate stay is credible and the threshold for obtaining one is opaque. After Loper Bright, this is more concerning still: courts conducting emergency review now perform de novo statutory interpretation under time pressure, without full briefing, and without explanation. The combination of total interpretive authority and minimal procedural constraint is genuinely novel.

The pattern in the cases is consistent. The Court used emergency orders to block the Biden eviction moratorium, the OSHA vaccine mandate, and various EPA rules, while allowing the Texas SB8 abortion bounty law to take effect through procedural maneuvering before Dobbs had even been decided. Justice Kagan, the Court’s most pointed internal critic, argued in dissent that the expansion of shadow docket practice amounted to the Court inserting itself into major disputes without the tools or process to get them right. A court that demands transparency and explicit authorization from every other institution while operating in opacity itself has abandoned any principled claim to the restraint it advertises.

CONCLUSION

The cumulative picture is of an institution that has claimed maximum interpretive authority over the regulatory state, freed itself from precedential constraint, deployed a one-sided doctrinal veto against disfavored policies, and done all of it while hiding behind the language of humility and democratic accountability. Umpires, as Roberts once suggested, just call balls and strikes. But this Court has been rewriting the rulebook, choosing which games get played, and doing so from a booth with no instant replay. That is not restraint. It is power, carefully described as its opposite.