Page:Michael J. Biestek v. Nancy A. Berryhill, Acting Commissioner of Social Security.pdf/25

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Cite as: 587 U. S. ___ (2019)

Gorsuch, J., dissenting

The principle that the government must support its allegations with substantial evidence, not conclusions and secret evidence, guards against arbitrary executive decisionmaking. See Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267, 1313–1314 (1975). Without it, people like Mr. Biestek are left to the mercy of a bureaucrat’s caprice. Over 100 years ago, in ICC v. Louisville & Nashville R. Co., 227 U. S. 88 (1913), the government sought to justify an agency order binding private parties without producing the information on which the agency had relied. The government argued that its findings should be “presumed to have been supported.” Id., at 93. In essence, the government sought the right to “act upon any sort of secret evidence.” Gellhorn, Official Notice in Administrative Adjudication, 20 Texas L. Rev. 131, 145 (1941). This Court did not approve of that practice then, and I would not have hesitated to make clear that we do not approve of it today.

I respectfully dissent.