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Now, the court’s conservative majority is poised to do away with Chevron — or, at the very least, further defang a precedent that’s been cut back in recent years. In oral arguments in two cases that stretched past three and a half hours on Wednesday, the justices resorted to technical jargon about “Skidmore deference” — a reference to a 1944 case that adopted a milder form of respecting agency views — and whether to “Kisorize” Chevron — a reference to a 2019 ruling in which the court constrained but did not outright eliminate a different form of deference.
But the fundamental question was clear: Who decides? From the liberal point of view: unelected judges or regulators with expertise and accountability? From the conservative vantage point: judges constitutionally empowered to say what the law is or unelected bureaucrats?
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The court’s three liberal justices emphasized the limits of judicial authority and, more important, capacity. “Why shouldn’t … the entity with all of the qualities, expertise, experience, on-the-ground execution, knowledge of consequences, why shouldn’t deference be given to that entity?” asked Justice Sonia Sotomayor.
Justice Elena Kagan, citing “the countless policy issues that are going to confront this country in the years and decades ahead,” put the stakes in stark terms. “Will courts be able to decide these issues as to things they know nothing about, courts that are completely disconnected from the policy process, from the political process, and that just don’t have any expertise experience in an area,” she asked, “or are people in agencies going to do that? That’s what this case is about.”
The approach adopted by Chevron, added Justice Ketanji Brown Jackson, is “doing the very important work of helping courts stay away from policymaking, and so … help me understand why, if we do away with Chevron’s framework, we won’t have a problem of courts actually making a policy decision.”
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The conservative justices assess the risks differently. As they see it, Chevron lets Congress punt hard choices to unelected bureaucrats, allows agencies to flip-flop from one administration to another and reduces judges to the role of unthinking handmaidens to regulators.
Conservatives have inflated the Chevron ruling to the status of constitutional pestilence. Roman Martinez, representing one set of fishing boat owners at Wednesday’s arguments, said the ruling “threatens individual liberty.” Paul Clement, the former solicitor general representing other boat owners, termed it an “egregiously wrong decision that just gets it wrong on the basis of separation of powers.”
During Wednesday’s arguments, Chief Justice John G. Roberts Jr. wondered how much the issue mattered, given Chevron’s reduced influence in recent years. Justice Amy Coney Barrett worried that overruling the case was “inviting a flood of litigation” reopening settled questions.
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But the other conservative justices seemed eager to get on with the gutting. At times, their leading questions appeared aimed at much at hastening its demise as at weighing the consequences.
“Would you agree that one of the reasons why Chevron was originally so popular was concern that judges were allowing their policy views, consciously or unconsciously, to influence their interpretation of the statutes in question?” prompted Justice Samuel A. Alito Jr. “Why was that fear unfounded? Why do you think now that the fear was unfounded?”
Gorsuch lamented Chevron’s toll on “the immigrant, the veteran seeking his benefits, the Social Security Disability applicant” — conveniently omitting that the campaign to overrule the decision, including the cases currently before the high court, has been funded by well-heeled conservative groups, including the Koch network.
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The Supreme Court has invoked Chevron some 70 times to uphold agencies’ actions. Lower courts have relied on the case 17,000 times. So, it is not too early to consider the practical consequences of abandoning that approach. Solicitor General Elizabeth B. Prelogar, representing the Biden administration, warned of “chaos” and “disarray,” with thousands of decisions open to challenge and “different rules in different parts of the country.”
That might understate things. Prelogar needs to be circumspect and polite about the politicization of the federal courts. I don’t. Here’s what will happen if federal judges are freed from having to defer to agency interpretations: During Democratic administrations, conservatives challenging agency action will race to friendly conservative courts to file challenges; during Republican administrations, the opposite will happen. That venue-shopping already occurs, but overruling Chevron will make it that much worse.
And to the detriment of courts and the rule of law. “You’re saying blow up one doctrine of humility [Chevron deference], blow up another doctrine of humility [courts’ reluctance to overrule precedent] and then expect anybody to think that the courts are acting like courts,” Kagan told Clement.
Kagan’s prognosis is grim but not overblown. Unfortunately, it’s not likely her conservative colleagues will heed the warning now that they have the votes.
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The most important case before the Supreme Court this term might not be about Donald Trump. It might be about herring.
Specifically, about whether herring fishermen must pay for government observers on their boats to prevent overfishing. Even more specifically, the case is about whether the conservative-dominated court is prepared to throw overboard a 40-year-old precedent that instructs federal judges to defer to administrative agencies in interpreting the laws they enforce.
When that earlier case, Chevron v. Natural Resources Defense Council, was decided in 1984, at the height of the Reagan administration’s anti-regulatory push, conservatives cheered it as a way of reining in activist judges and preventing them from substituting their own policy preferences for those of federal regulators.
But as the federal judiciary grew more conservative — and the administrative state more sprawling — “Chevron deference,” as it became known, emerged as a major target for economic and legal conservatives. Two of Trump’s three Supreme Court nominees — Neil M. Gorsuch and Brett M. Kavanaugh — were chosen in significant part because of their hostility to the ruling, which other conservatives have come to view as an intolerable barrier to their efforts to dismantle an out-of-control federal bureaucracy.
Now, the court’s conservative majority is poised to do away with Chevron — or, at the very least, further defang a precedent that’s been cut back in recent years. In oral arguments in two cases that stretched past three and a half hours on Wednesday, the justices resorted to technical jargon about “Skidmore deference” — a reference to a 1944 case that adopted a milder form of respecting agency views — and whether to “Kisorize” Chevron — a reference to a 2019 ruling in which the court constrained but did not outright eliminate a different form of deference.
But the fundamental question was clear: Who decides? From the liberal point of view: unelected judges or regulators with expertise and accountability? From the conservative vantage point: judges constitutionally empowered to say what the law is or unelected bureaucrats?
The court’s three liberal justices emphasized the limits of judicial authority and, more important, capacity. “Why shouldn’t … the entity with all of the qualities, expertise, experience, on-the-ground execution, knowledge of consequences, why shouldn’t deference be given to that entity?” asked Justice Sonia Sotomayor.
Justice Elena Kagan, citing “the countless policy issues that are going to confront this country in the years and decades ahead,” put the stakes in stark terms. “Will courts be able to decide these issues as to things they know nothing about, courts that are completely disconnected from the policy process, from the political process, and that just don’t have any expertise experience in an area,” she asked, “or are people in agencies going to do that? That’s what this case is about.”
The approach adopted by Chevron, added Justice Ketanji Brown Jackson, is “doing the very important work of helping courts stay away from policymaking, and so … help me understand why, if we do away with Chevron’s framework, we won’t have a problem of courts actually making a policy decision.”
The conservative justices assess the risks differently. As they see it, Chevron lets Congress punt hard choices to unelected bureaucrats, allows agencies to flip-flop from one administration to another and reduces judges to the role of unthinking handmaidens to regulators.
Conservatives have inflated the Chevron ruling to the status of constitutional pestilence. Roman Martinez, representing one set of fishing boat owners at Wednesday’s arguments, said the ruling “threatens individual liberty.” Paul Clement, the former solicitor general representing other boat owners, termed it an “egregiously wrong decision that just gets it wrong on the basis of separation of powers.”
During Wednesday’s arguments, Chief Justice John G. Roberts Jr. wondered how much the issue mattered, given Chevron’s reduced influence in recent years. Justice Amy Coney Barrett worried that overruling the case was “inviting a flood of litigation” reopening settled questions.
But the other conservative justices seemed eager to get on with the gutting. At times, their leading questions appeared aimed at much at hastening its demise as at weighing the consequences.
“Would you agree that one of the reasons why Chevron was originally so popular was concern that judges were allowing their policy views, consciously or unconsciously, to influence their interpretation of the statutes in question?” prompted Justice Samuel A. Alito Jr. “Why was that fear unfounded? Why do you think now that the fear was unfounded?”
Gorsuch lamented Chevron’s toll on “the immigrant, the veteran seeking his benefits, the Social Security Disability applicant” — conveniently omitting that the campaign to overrule the decision, including the cases currently before the high court, has been funded by well-heeled conservative groups, including the Koch network.
The Supreme Court has invoked Chevron some 70 times to uphold agencies’ actions. Lower courts have relied on the case 17,000 times. So, it is not too early to consider the practical consequences of abandoning that approach. Solicitor General Elizabeth B. Prelogar, representing the Biden administration, warned of “chaos” and “disarray,” with thousands of decisions open to challenge and “different rules in different parts of the country.”
That might understate things. Prelogar needs to be circumspect and polite about the politicization of the federal courts. I don’t. Here’s what will happen if federal judges are freed from having to defer to agency interpretations: During Democratic administrations, conservatives challenging agency action will race to friendly conservative courts to file challenges; during Republican administrations, the opposite will happen. That venue-shopping already occurs, but overruling Chevron will make it that much worse.
And to the detriment of courts and the rule of law. “You’re saying blow up one doctrine of humility [Chevron deference], blow up another doctrine of humility [courts’ reluctance to overrule precedent] and then expect anybody to think that the courts are acting like courts,” Kagan told Clement.
Kagan’s prognosis is grim but not overblown. Unfortunately, it’s not likely her conservative colleagues will heed the warning now that they have the votes.
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