The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Justice Kagan Cares about Chevron

Just what did Justice Breyer say that she finds so objectionable?


In SAS Institute Inc. v. IANCU, the Supreme Court held 5-4 that when the U.S. Patent & Trademark Office conducts an inter partes review of a patent, it must decide the patentability of all of the claims the petitioner has challenged. The Court split along traditional ideological lines with Justice Gorsuch writing the majority and Justice Breyer wrote the dissent.

An interesting aspect of the SAS Institute that non-patent-law types may have missed is that Justice Kagan joined all of Justice Breyer's dissenting opinion with the exception of Part III-A. And what was in this part of Justice Breyer's opinion? A very Breyer-esque take on the Chevron doctrine.

Here is the relevant part of Justice Breyer's opinion:

In referring to Chevron, I do not mean that courts are to treat that case like a rigid, black-letter rule of law, instructing them always to allow agencies leeway to fill every gap in every statutory provision. . . . Rather, I understand Chevron as a rule of thumb, guiding courts in an effort to respect that leeway which Congress intended the agencies to have. I recognize that Congress does not always consider such matters, but if not, courts can often implement a more general, virtually omnipresent congressional purpose— namely, the creation of a well-functioning statutory scheme—by using a canon-like, judicially created construct, the hypothetical reasonable legislator, and asking what such legislators would likely have intended had Congress considered the question of delegating gap-filling authority to the agency.

This paragraph reiterates Justice Breyer's long-standing, flexible and pragmatic view of when courts should defer to federal agencies' statutory interpretations—a view he has put forth many times before, both as a lower court judge and as a Supreme Court justice. Justice Kagan, on the other hand, has a more formalist take on this doctrine, and one that is more systematically deferential to the executive branch. (To illustrate this divide, note that Justice Kagan joined Justice Scalia's muscular pro-Chevron opinion in City of Arlington v. FCC, while Justice Breyer wrote separately.)

Given their differences on Chevron (and judicial review of agency action generally) Justice Kagan's refusal to sign on to Justice Breyer's take on Chevron is understandable. And what of Justices Sotomayor and Ginsburg? I do not interpret their willingness to sign on to the whole of Justice Breyer's opinion as indicating their agreement with his idiosyncratic take. Rather, I take it as a sign that, unlike Justices Breyer and Kagan (and Chief Justice Roberts), Justices Ginsburg and Sotomayor do not have fully formed commitments on how and when the doctrine should apply. Administrative law is not their thing, and so these sorts of doctrinal differences are not of particular concern to them. Whereas if the opinion concerned a subject closer to either Justice's core concerns and expertise (think Justice Ginsburg and civil procedure) we would have likely seen a greater willingness to lay down doctrinal markers as Justice Kagan did here.

For those of us who focus on administrative law, this is a reminder that not all of the justices are interested in this area of law. While some have well-developed AdLaw worldviews, others do not.