Judiciary

What Do Judges Think of Chevron?

It appears that Justice Neil Gorsuch is far from the only one who questions the wisdom of Chevron deference and other findings from a new survey of federal judges.

|The Volokh Conspiracy |

Justice Neil Gorsuch is not a fan of Chevron deference. As a federal appellate judge, Gorsuch questioned the wisdom of deferring to federal regulatory agencies' interpretations of the statutes they are tasked to administer.

It turns out Justice Gorsuch was not alone among appellate judges. According to a newly released survey of over three-dozen federal appellate judges, quite a few are skeptical of Chevron deference, and such views appear to be most prevalent among those appellate judges who, like Gorsuch, sit outside of the Beltway.

That other judges are skeptical of Chevron deference is but one of the interesting findings from the survey of 42 sitting federal appellate judges conducted by Professor Abbe Gluck and former judge Richard Posner, just published in the Harvard Law Review. The focus of the survey is how federal appellate judges approach questions of statutory interpretation. While there is ample work examining and critiquing how Supreme Court justices interpret statutes, far less attention has focused on the methods that predominate in lower federal courts, even though lower courts are where the vast majority of statutory interpretation cases will be resolved.

Here is how Gluck and Posner summarize their findings—which they characterize as "themes" given the necessarily small sample size:

First, what divides judges is not what academics and judges think divides judges. None of the judges is a "textualist" in the extreme sense of that word, or even in the version of textualism that was practiced by Justice Scalia. Very few judges told us they read the entire statute, or even begin their analysis of statutory cases with the text of the statute. All of the judges use legislative history. Dictionaries are mostly disfavored. Even when asked to provide one word to describe their interpretive approaches, not one judge was willing to self-describe as "textualist" without qualification. Even the text-centric judges described themselves in such terms as "textualist-pragmatist" or "textualist-contextualist." Our findings reveal the academic cliché de mode — "we are all textualists now" — to be an overstatement.

At the other end of the spectrum, however, there were no extreme purposivists either, in the sense of the purposivism that has been textualism's foil. No judge stated that purpose was a more important tool than statutory text, and only one judge claimed to begin analysis of a statutory case with the statute's purpose. Even those judges who emphasized the importance of purpose as an interpretive tool made clear they still would not use purpose to push a statute's interpretation beyond the limits of its text.

And when it comes to tools of decision, the biggest divisions among the judges interviewed had nothing to do with text, legislative history, or canons — the topics that dominate and divide Supreme Court opinions and academic discourse. Also, no significant differences could be found simply by looking at the political party of the President who had appointed the judge, or at other personal factors such as the judge's gender or race, at least based on our limited sample. Among the judges we interviewed, the greatest divisions resulted from the three factors that we already have introduced and now further detail: the judge's age, whether he or she sits on the D.C. Circuit, and prior experience working on Capitol Hill. These factors have received almost no theoretical attention

Among the judges interviewed by Gluck and Posner, younger judges tended to be more "rule-oriented" in their approach to statutory inerpretation and more reliant on canons of construction. Older judges, on the other hand, "were more forthright about the quasi-legislative activity that statutory interpretation by judges entails, and discussed openly whether gaps in statutes could be understood as delegation by Congress to the courts." Whether judges had experience in other branches of government also appeared to have a significant influence on their approach to statutory interpretation.

On the question of Chevron deference, Gluck and Posner find ample skepticism among the judges they interviewed, particularly among those not sitting on the U.S. Court of Appeals for the D.C. Circuit, the federal appellate court in which most Chevron cases are heard. D.C. Circuit judges, on the other hand, "have drunk the Chevron Kool-Aid," Gluck and Posner write.

Although every judge we interviewed told us that he or she was bound by Chevron — and all but one of the judges did apply that rule in opinions — most of the judges we interviewed do not favor the Chevron rule. Here is where we see a "D.C. Circuit effect" in our study. All but one of the D.C. Circuit judges we interviewed — who were of different generations and political parties — were admirers of Chevron deference, whereas most other judges from the other courts of appeals were decidedly anti-Chevron.

Does this skepticism of Chevron affect judicial decisions? Here's what Gluck and Posner have to say:

Because all of the judges told us that they felt bound by Chevron, we were not surprised to see little evidence of their distaste for the doctrine in opinions. Nevertheless, in our random sampling of their opinions, we found that three judges who were particularly emphatic about their dislike of Chevron did defer less than fifty percent of the time (a lower rate of deference than the others) and expressed Chevron skepticism in opinions. Another judge who told us he obeyed the doctrine but had come to question it wrote opinions that reflect that as well. . . .

Even though the most vocal public critics of the rule tend to be associated with legal conservatism, our survey indicates that judicial discomfort with Chevron may be more common, and politically balanced, than one might think. To that end, it is relevant that thirty-five out of the forty-two judges we interviewed were interviewed before Justice Gorsuch's nomination. . . .

The D.C. Circuit judges we spoke with are different. They accept Chevron as part of the basic wiring of how that court decides cases and generally are comfortable with it.

For myself, I've argued that Chevron needs to be contained (see also here), but I am not convinced that it should be overrule. (Auer deference, on the other hand, should definitely be abandoned.) While Gluck and Posner report finding no ideological split in how Chevron is applied, other recent research may suggest otherwise.

From the Gluck and Posner conclusion:

Our study of federal appellate judges reveals a host of topics about statutory interpretation that pose far more interesting questions than do the old debates about text versus purpose. The study also adds more context to our understanding of interpretation than what emerges from the Supreme Court's cases and most of the academic literature about the field.

The last three decades' march toward a more formalist approach to interpretation seems more qualified in the lower courts, even though it indisputably has shaped the thinking of many judges. We saw in our interviews the influence of that progression in the younger judges' internalization of many of the canons of construction. But most of the judges whom we interviewed still emphatically defended their willingness to consult all available materials as the most legitimate way, in their view, to reach the right result and one consistent with Congress's intent.

In all, there's lots to chew on in this paper, and it's a must read for those who are concerned about statutory interpretation in federal courts.

UPDATE: Chris Walker comments at the "Notice & Comment." in a footnote, he highlights some of the survey's limitiations, some of which the authors acknowledged, others which are only implicit. In short, while Gluck and Posner made a sincere effort to create a representative sample, there are reasons to suspect the 42 judges they interviewed are not representative of federal appellate judges generally, and perhaps even that some judges' comments were tailored to the audience. After all, Posner's views on statutory interpretation are quite well-known, and he has not always been kind to those who take a different view. Nonetheless, this article provides a useful window into how at least some judges approach statutory interpretation.

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  1. “In all, there’s lots to chew on in this paper”

    That’s what my dog thought about *my* paper on Chevron deference, now I’ve been beaten to the punch by Judge Posner.

  2. Did any of the judges answer the survey, “I buy gas there all the time”?

  3. Shorter version of a 73 or so page law review article: “It would appear that the administrative agencies, having been captured by the industries/entities they regulate, have in their turn captured the judges who most frequently have to administer the law to the agencies themselves.” Thus the division of opinion between the DC Circuit on the one hand, and all the others, on the other.

    Layers of agency capture… whod’a thunk it?

    1. Capture is a continuum. It certainly happens, but we’re better than the days of the robber barons when it was a legit argument that we should have Senators representing Sugar and other commodities.

      When you just say ‘captured’ you seem like you’re using it as an excuse for an institution you are previously hostile to.

      1. Not sure why you think that the current system is better. Instead of capturing a Senator or two, industries, or even corporations, if they are big enough, capture entire agencies, and once they have their people running the agencies, bend the regulations to their advantage. I would suggest that it is far harder to buy enough members of Congress to get what you want in legislation, than to merely get one of your people appointed to run an agency, and then to interpret the laws on the books as you wish.

        And that, BTW, is one of the real weaknesses of Chevron. Their interpretation of laws is not always, and maybe often not, based on best science, or best practices, but, rather, the politics of the political appointees running the agency, leavened by the politics of the agency employees. All you have to do to see this in action is watch what is happening right now in a number of federal agencies, as the Trump Administration seeks to reverse course from that set by the Obama Administration.

        1. Capture is a continuum. As I said. A shifting of incentives. That’s actually part of why it’s insidious.

          Don’t think I’m denying it’s a problem when I note that it’s not a ‘captured’ ‘nobly un-captured’ thing.

          I note that your ‘merely get one of your people appointed to run an agency’ thesis seems to go against the current right-wing narrative of the deep state…
          Certainly a political appointee with an agenda is problematic (and hopefully politically damaging), but political appointees are hardly the entire agency.

          Chevron is about who decides, the experts or the courts. If you think about it, the casual argument that the mere risk of bias of experts means we need to leave it to the judiciary has some pretty wide-ranging social implications…

          1. I am curious, is Scott Pruitt, the current head of the EPA, an “expert” on environmental protection? Or, at least, an expert on the intent of Congress when it passed the legislation authorizing the EPA?

            I think when you frame it as “expert” agencies versus “generalist” courts that you have already laid a heavy thumb on the scale of who should decide. But, I think the point of talking about capture or, even just politics, is to suggest that “experts” at agencies might not, in fact, always be driven by their supposed expertise in interpreting the law.

            And another point. What kind of “expert” are we talking about anyway? When it comes to interpreting the law, wouldn’t we say that courts are, in fact, supposed to be expert at doing so? Agency employees may (and should) have more subject-matter understanding, but does that mean that they are really better able to discern the meaning of a statute also? And if their subject-matter expertise is so key to understanding whatever statute whose meaning is in dispute, why can’t they communicate the key facts in a persuasive manner to a generalist judge who is an expert on statutory interpretation without having a finger on the scale in their favor? Shouldn’t expertise be persuasive enough on its own without an additional finger on the scale?

            I think Chevron deference is probably more about our disputes about the proper role of the judiciary and its ability to interfere with executive-branch decision-making than expertise.

  4. If a law does not makes sense, is contradictory, is overly broad, is vague, or unconstitutional, the courts should just declare the law unconstitutional void and send it back to the Legislatures.

    1. All those are line-drawing issues. Is it overly broad for Congress to delegate some of it’s power to experts?

      Perhaps it’s too much of the Conspiracy, but I find people who argue that judges should invalidate more of Congress’ laws for lack of clarity are the same people who believe that it is a moral and Constitutional imperative that there be less government, and being unhappy about this is just a convenient instrument to entice people who aren’t on board with that agenda.

      In reality, the lack of clarity is necessary for proper specificity, and when general it is due to delegation to the administrative state. The administrative state, of course, being found in 100% of modernized, generally arising about when they enter the modern era. Almost as though it is a necessity of modernity.

  5. “Even though the most vocal public critics of the rule tend to be associated with legal conservatism . . .”

    Really? I thought legal conservatism, understood historically, involved deference to the political branches, while legal activism (or liberalism) involved legislating from the bench. Perhaps the comment makes more sense if interpreted to mean, “. . . associated with movement conservatism.”

    1. Not anymore – have you not seen the pivot to suddenly seeing the benefits of ‘conservative activism?’

    2. Legal conservatism was deference to the political branches in their sphere. Moving legislative power to the executive is outside of those respective spheres. Essentially the idea in legal conservatism was deference to the people and the people they choose to represent them, but the executive was not chosen by the people as legislative representatives.

      1. Cute legal formalism, but you are begging the question about what these spheres are.
        Moreover I see no evidence the people are so subtle in their civic understanding that they care about the distinction between legislative and executive powers in the modern administrative era.

        This looks a lot like it is just papering over the philosophical shift when a different set of ideals becomes more convenient.

        1. So your view is that legal conservatism didn’t have a notion of separation of powers?

          Chevron isn’t about deciding whether a regulation is good or not. It’s about deciding whether it is within the power Congress delegated to the agency. That is a legal question, not one that experts in their field are in the best position to answer. It makes no sense to defer to them to interpret what Congress said they can do.

    3. Conservatism, understood historically, has not always deferred to the political branches. After all, if FDR had been deferred to by what he thought were conservative judges, he wouldn’t have bothered with his court-packing scheme, would he have?

      I think that conservatives picked up the rhetoric of deference to the political branches more in response to particular decisions they did not like. But, I also expect that they can and will shift if they perceive themselves to have more influence on the judicial branch than elsewhere.

      And I do not mean to single out conservatives here. In general, people seem to grab the arguments that seem most likely to advance what they think is best at the time, whether they are conservative or liberal. This leads to inconsistencies.

      I would just say that expecting most conservatives or most liberals to be consistent to a set of principles over a period of time is usually not going to result in accurate predictions of behavior. Although people like to think of themselves as driven primarily by principle, I think that the principles that drive a persons thinking tends to change over time.

  6. “Very few judges told us they read the entire statute, or even begin their analysis of statutory cases with the text of the statute. All of the judges use legislative history.”

    The aforementioned comment is quite surprising to me. AS a CPA with a specialization in taxation, the statute is the near absolute first place to go. We will look at the legislative history for the purposes of tracking changes in the statute, (primarily from the point of changes from prior statutes ).

    1. I think taxation is a little different because both statutes and regulations tend to be written in excruciating detail in order to make everything as black-and-white as possible for the sake of certainty and consistency.

  7. Being a cynic, I suspect that a lot of judges like Chevron because it means a lot less work for them. All they have to do is say the agency adopted this interpretation, it seems “reasonable” and “affirmed.” Time for golf.

  8. I havent’ read Posner’s article, but I wonder if his 3 key features of judges relates to my pet theory of Chevron deference: that it’s an excuse for judges to avoid having to think hard about boring and complicated regulations (that is, pretty much all regulations). The DC Circuit would be overwhelmed with extra regulatory cases if they didn’t deputize the agencies to decide most of them. Thus, the DC Circuit espeically likes Chevron.

  9. So the choices are to defer to an agency, which may be “captured,” or let a judge who is ignorant of the (non-legal) technical issues involved decide.

    Is that it?

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