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Justice Scalia’s Worst Opinions

Justice Scalia testifies on Capitol Hill in Washington

Recently, there has been some discussion, by admirers of Justice Scalia, of what is the Justice’s worst opinion.  Mike Paulsen argues it is Employment Division v. Smith, where Scalia for the Court interpreted the Free Exercise Clause to provide less protection for those who seek religious exemptions from general laws.  Mike Ramsey mentions both Whitman v. American Trucking (expansive view of Congress power to delegate to the executive) and Gonzales v. Raich (expansive view of Congress necessary and proper power) as possibilities.

Scalia’s views on the nondelegation doctrine are potentially important.  While the justices on the right have supported limits on Congress’s commerce power, there has been no similar efforts as to Congress’s power to delegate.  There are several reasons for that but one important reason is that Scalia would not have gone along.

In my view, though, Scalia’s worst opinions are his series of opinions defending the Chevron doctrine.  There is a reasonable argument that if Scalia had not been on the Court, the High Court would never have adopted the broad Chevron doctrine.  The Chevron decision itself, written by Justice Stevens, was probably never meant to have adopted the broad rule of deference that it has become.  Instead of adopting a categorical rule that required deference to agencies for both pure questions of law and mixed questions of law and fact, it was probably intended merely to hold that the particular statute at issue in that case – the Clean Air Act – allowed the executive deference as to the particular type of decision in that case.

Despite Justice Stevens’s apparent intent, the broader, categorical view of Chevron was adopted in the D.C. Circuit when Scalia was on that court.  When Scalia was elevated, he brought that view to the Supreme Court.  In the 1987 case of INS v. Cardoza-Fonseca, Justice Stevens – the author of Chevron – wrote that deference did not extend, in the context of the Immigration and Nationality Act, to pure questions of law (one take on the traditional view).  Evidently, Justice Stevens did not understand Chevron to have the broad meaning.  Scalia wrote a concurrence, for himself only, arguing for the broad interpretation and claiming that Chevron applied to pure and mixed questions.

At this point, it was Justice Scalia alone who adopted the broad view of Chevron.  But later that same term in NLRB v. United Food & Commercial Workers Union, Scalia was able to persuade three other justices (Rehnquist, White and O’Connor) of the broad interpretation.  And since then, the broad interpretation of Chevron has been followed at the Supreme Court.

As I have argued previously, Chevron could not be justified based on the original meaning of the Administrative Procedure Act.  Nor could it be justified based on precedent at the time of its decision.  It was largely a combination of the political preferences of the D.C. Circuit judges at the time – in favor of agencies (instead of judges) and in favor of clear rules.  Scalia’s textualism should have caused him to eschew the decision.

Reader Discussion

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on April 24, 2015 at 11:32:22 am

If Chevron was his nadir, perhaps Scalia achieved some redemption in his Brand X dissent. There, he joined Breyer (!) and Ginsburg (!!) in opposing Thomas's decision (!!!) stretching Chevron deference to new lengths.

The majority found the Federal Communications Act to be so ambiguous as to permit the FCC to conclude that, while the phone line that brought you internet service over a dial-up modem was a common carrier "telecommunications service," the cable that brought you internet service via a modem was a completely different animal entitled to completely different (and largely non-existent) regulation. Thus the Court deferred to the FCC's scheme to draw a clear regulatory line on a sheet of ice melting in the sun. The unsustainability of this regulatory distinction would set the stage for the Net Neutrality wars.

Scalia scoffed at the majority's reasoning and its reckless extension of Chevron deference. With some spot-on down-home analogies (comparing internet providers to pizza parlors), he skewered the majority's opinion as "a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions.”

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nobody.really
on April 24, 2015 at 15:20:02 pm

Any inkling of why Scalia would be so fond of deference to Admin Agencies. It somehow seems out of "character" (if that is the right term). My memory may be failing me here (probable) but I seem to recall that both Thomas and Scalia in a recent opinion opined that the whole notion of "deference may be due for a re-examination and in fact may have made veiled allusion to Phillip Hamburgers recent work on Admin Law (BTW: read it - it is rather compelling).

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gabe
on April 24, 2015 at 15:53:06 pm

Gabe, you forget that in the 80s, conservatives were eager to defend executive prerogative as exercised by the Reagan administration from attacks by Democrats in Congress, the media and leftist "public interest" groups. Perhaps you're too young to remember those days. ;-)

Back then, Republicans seemed to think they would never again lose the White House. Pretty laughable from today's perspective.

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djf
on April 24, 2015 at 16:57:59 pm

OK, thanks - that does put an interesting spin on Scalia and Chevron and clearly one that detracts from his general repute.

If only, I were TOO young to remember and when I start thinking that I am - my bones tell me otherwise.
take care
gabe

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gabe
on April 25, 2015 at 16:46:33 pm

You should keep in mind that the administrative policies conservatives like Scalia were defending in the 80s, were CONSERVATIVE policies, to which the Left objected as contrary to the congressional intent behind the statutes. If this was a failure, it was a failure of the conservative movement as a whole, not a personal failure of Scalia's.

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djf
on May 15, 2016 at 15:27:08 pm

[…] late Justice Antonin Scalia, committed originalist though he was, championed and even helped to expand the doctrine of judicial deference set forth in Chevron U.S.A. Inc. v. Natural Resources Defense […]

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Image of Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement | Slantpoint Democrat
Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement | Slantpoint Democrat
on May 15, 2016 at 15:30:26 pm

[…] the late Justice Antonin Scalia, committed originalist though he was, championed and even helped to expand the doctrine of judicial deference set forth in Chevron U.S.A. Inc. v. Natural Resources Defense […]

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Image of Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement | Breaking US news
Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement | Breaking US news
on May 15, 2016 at 15:59:18 pm

[…] late Justice Antonin Scalia, committed originalist though he was, championed and even helped to expand the doctrine of judicial deference set forth in Chevron U.S.A. Inc. v. Natural Resources Defense […]

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Image of Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement – Slantpoint
Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement – Slantpoint
on May 15, 2016 at 19:51:16 pm

[…] the late Justice Antonin Scalia, committed originalist though he was, championed and even helped to expand the doctrine of judicial deference set forth in Chevron U.S.A. Inc. v. Natural Resources Defense […]

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Image of Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement | KJOZ 880 CALL IN TOLL FREE 1-844-880-5569
Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement | KJOZ 880 CALL IN TOLL FREE 1-844-880-5569
on February 06, 2017 at 00:01:42 am

[…] tend to use this discretion to expand their power to regulate. Scalia not only supported but played an active role in expanding this doctrine, both on the DC Circuit and at the Supreme Court (which he joined in 1986). […]

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Image of Boring Neil Gorsuch | The American Conservative
Boring Neil Gorsuch | The American Conservative
on March 07, 2017 at 10:33:25 am

[…] tend to use this discretion to expand their power to regulate. Scalia not only supported but played an active role in expanding this doctrine, both on the DC Circuit and at the Supreme Court (which he joined in 1986). […]

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Image of Boring Neil Gorsuch – USSA News | The Tea Party's Front Page
Boring Neil Gorsuch – USSA News | The Tea Party's Front Page

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.