Justice Samuel Alito's speech shows that originalism will be the parole of the Court going forward, and that Alito will be the originalist of tradition.
In 2016 here at Law and Liberty, I asked whether administrative law’s judicial deference doctrines matter. Leveraging my study with Kent Barnett on Chevron deference in the federal courts of appeals, I argued that these doctrines do matter. In this essay, I explore the related question of whether Chevron deference advances its stated objectives. In particular, does Chevron deference constrain partisanship in judicial decisionmaking? The answer to this question has important implications for the current debate on whether to narrow, or even eliminate, Chevron deference.
For the uninitiated, Chevron deference is the judicial doctrine that federal agencies—and not courts—are the primary interpreters of statutes that Congress has charged the agencies to administer. “If a statute is ambiguous, and if the implementing agency’s construction is reasonable,” Justice Thomas has explained, “Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.”
In recent years, there has been a growing call to eliminate Chevron deference. This call has come from the Hill, the federal bench, and the legal academy. Last year it was front and center during the Senate Judiciary Committee’s hearing on Neil Gorsuch’s nomination to the Supreme Court, as then-Judge Gorsuch had authored a concurring opinion critical of Chevron deference and its progeny. That Gorsuch concurrence was quite reminiscent of Justice Thomas’s earlier attack on Chevron deference in his concurring opinion in Michigan v. EPA. Indeed, last week, the New York Times reported there’s a new “litmus test” for judicial nominees, which was applied in the selection of Gorsuch for the Supreme Court: “reining in what conservatives call ‘the administrative state.’”
The call to eliminate Chevron deference has largely come from those right of center. But it would be a mistake to conclude that everyone center-right is, or should be, in favor of eliminating administrative law’s deference doctrines. There is deep divide on the right with respect to the role of federal courts in our constitutional republic. Some view courts as a critical safeguard of liberty, and thus encourage courts to actively engage in checking the actions of the political branches. Think Randy Barnett and Philip Hamburger. Others, by contrast, argue that because federal courts are not democratically accountable, they should exercise judicial restraint, embrace the “passive virtues” when possible, and otherwise adopt a minimalist and deferential approach to judicial review of actions by the political branches. Think Michael Stokes Paulsen and Adrian Vermeule.
For years, if not decades, the proper role of federal courts has thus been subject to an ongoing and vigorous debate within the Federalist Society and related circles.
Indeed, the Chevron Court itself grounded this deference doctrine in part on the need to reserve political (or policy) judgments for the more politically accountable agencies:
Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices—resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.
In other words, Chevron deference strives to remove politics from judicial decisionmaking. Such deference to the political branches has long been a bedrock principle for at least some judicial conservatives.
Does Chevron deference achieve this goal of removing politics from judicial decisionmaking?
In an article forthcoming in the Vanderbilt Law Review, Kent Barnett, Christina Boyd, and I attempt to answer this question empirically. To do so, we leverage our Chevron dataset that includes every published circuit-court decision that involved Chevron or Skidmore deference from 2003 through 2013. Over this eleven-year period, the federal courts of appeals reviewed 1,613 agency statutory interpretations in 1,382 published opinions where they considered applying either deference doctrine.
Contrary to prior, more limited studies, we find that Chevron deference has a powerful constraining effect on partisanship in judicial decision-making. To be sure, we still find some statistically significant results as to partisan influence. But the overall picture provides compelling evidence that the Chevron Court’s objective to reduce partisan judicial decision-making has been quite effective.
First, like earlier studies, we find that politics does play some role in how circuit courts review agency statutory interpretations. Liberal three-judge panels, for instance, are more likely to agree with liberal agency interpretations and less likely to agree with conservative interpretations. Vice versa for conservative panels. When we separate how conservative and liberal panels act in cases in which they apply Chevron deference, however, we find that Chevron deference significantly constrains judicial discretion. For instance, the most liberal-judge panels agree with conservative agency statutory interpretations 51% of the time when they apply the Chevron deference framework, compared to just 18% when they don’t. The most conservative-judge panels similarly agree with liberal agency interpretations 66% of the time with Chevron deference, and only 18% without.
That does not mean that Chevron eliminates political behavior entirely. When it comes to conservative agency interpretations, there’s a 23% difference in the likelihood of panels across the ideological spectrum agreeing with the agency under Chevron deference (and a higher 36% difference when panels applied a lesser form of deference). We found a similar 25% difference for review of liberal agency interpretations under Chevron. When the circuit courts do not apply Chevron, that difference rises to a staggering 63% difference.
When the circuit courts decide to apply the Chevron framework, they largely apply it in a similar fashion, with only modest ideological behavior. Conservative panels, for example, were as much as 21% more likely than liberal panels to find no ambiguity when reviewing a liberal agency interpretation, whereas liberal panels were as much as 14% more likely than conservative panels to find no ambiguity when reviewing conservative agency interpretations. Nonetheless, in contrast to Justice Scalia’s view (rearticulated recently by Judge Kethledge), we do not find that conservative judges are more likely to find statutes unambiguous regardless of the valence of the agency interpretation.
We also find no “whistleblower effects.” Whistleblower effects, as Cass Sunstein and others have explained, involve the phenomenon of group polarization, in that “[d]eliberating groups of like-minded people tend to go to extremes.” The presence of a panelist with opposing political preferences can serve as a whistleblower of sorts, which helps rein in the majority’s preference of politics over legal doctrine in a given case.
Contrary to the famous Cross and Tiller study, we find no whistleblowing effects in the Chevron deference context: Whether a panel is ideologically uniform or diverse does not affect whether circuit courts apply the Chevron framework, nor does it affect agency-win rates on judicial review. Indeed, we find only minor differences at even the ideological extremes, and those differences are strangely in the opposite direction than expected. This finding might seem surprising in light of the earlier, most-limited empirical studies that found such panel effects. But it’s not too surprising in light of our other findings. Because Chevron deference itself largely constrains partisanship in judicial decision-making, the ideological composition of the panel may have little, if any, additional constraining role to play.
We also had a bit of fun looking at individual judges who had at least 20 observations in our dataset. Some liberal judges, including Judge Stephen Reinhardt and then-Judge Sonia Sotomayor, affirmed 100% of liberal agency interpretations. But a few liberal judges, including Judges Marjorie Rendell and Robert Sack, indicate conservative behavior. Likewise, a number of conservative judges did not engage in ideological decision-making, though some did, including Judges Jane Roth and Michael Fisher. A number of conservative judges more favorably reviewed liberal interpretations than conservative ones. Judge Peter Hall voted to adopt 100% of liberal interpretations. Other prominent conservative judges, such as Judges Frank Easterbrook, Thomas Griffith, David Sentelle, and Jeffrey Sutton, similarly demonstrated counter-ideological voting patterns.
In sum, the findings from our study underscore one significant and largely overlooked cost of eliminating or narrowing Chevron deference: Such reform could result in partisanship playing a larger role in judicial review of agency statutory interpretations. It may turn out that, even with this cost taken into account, some on the right would conclude that such reform efforts produce a net benefit. For many, however, the cost of increased partisan judicial decision-making should be a cause for concern.