The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On the penultimate day of the October 2018 term, the Supreme Court issued three opinions. In all three cases, the Court's four liberal justices were part of the Court's majority and, in the most ideologically salient case — Kisor v. Wilkie—it appears Justice Kagan was able to convince Chief Justice Roberts to case a deciding vote to uphold Auer deference in Kisor v. Wilkie. We may see something quite different tomorrow when the Court hands down decisions on the Census, partisan gerrymandering, blood draws under the Fourth Amendment and the future of Oklahoma, but at least today the Court's liberal justices were in control.
In United States v. Haymond, Justice Gorsuch, joined by the Court's four liberals, concluded that a criminal defendant's sentence had been unconstitutionally increased, contrary to his constitutional jury trial right. Justice Breyer only concurred in the result, however, Justice Alito wrote a notably pointed dissent on behalf of the Court's conservatives.
In Tennessee Wine and Spirits Retailers Assn. v. Thomas, a 7-2 Court invalidated a Tennessee law imposing residency duration requirements on those seeking retail liquor licenses. The Court found the Tennessee law was unconstitutionally protectionist under the so-called "Dormant Commerce Clause" and could not be saved by the Twenty-First Amendment. Justice Alito wrote the majority opinion. Justice Gorsuch dissented, joined by Justice Thomas.
Last (and most disappointingly to some of us), the Court decided Kisor v. Wilkie, a dispute over veterans' disability benefits in which the Court had been asked to reconsider so-called "Auer deference" (aka "Seminole Rock deference"), under which reviewing courts are to give "controlling weight" to agency interpretations of ambiguous agency regulations. While the Court was unanimous in vacating the lower court decision to reconsider James Kisor's claim, the justices split 5-4 over whether to overturn Auer.
Justice Kagan delivered the opinion of the Court, joined by the Court's other liberals and, in large part, by Chief Justice Roberts, who also wrote a short opinion concurring in part. Justice Gorsuch wrote an extensive opinion concurring in the judgment (though dissenting on the question of whether to overrule Auer), joined in full by Justice Thomas, and in part by Justices Kavanaugh and Alito. Justice Kavanaugh also wrote a separate opinion concurring in the judgment, which Justice Alito also joined in part.
Justice Kagan's opinion for the Court simultaneously defended the doctrine of Auer deference, while also constraining its application going forward. As she put it, "even as we uphold [Auer], we reinforce its limits." In this, her opinion echoed the recommendations of the Solicitor General, who had urged the Court to mend-but-not end the controversial administrative law doctrine. As Chris Walker explains over at "Notice & Comment," Kagan replaced a broad doctrine often used by courts as an excuse to abdicate meaningful review of agency action into a multi-part test designed to limit Auer deference to a more narrow set of cases. In Kagan's words, "[t]he deference doctrine we describe is potent in its place, but cabined in its scope."
Under Kisor, Auer deference is only appropriate in certain circumstances. First, the reviewing Court must review the relevant regulatory language for itself in order to determine whether the regulation is ambiguous. If, after utilizing all of the usual tools of statutory interpretation (including text, history, structure, and purpose), it is then appropriate for the Court to defer to a truly reasonable interpretation of the regulation offered by the promulgating agency, provided additional conditions are met. Specifically, the Court must conclude that the agency interpretation represents the agency's authoritative interpretation, resulting from careful consideration and reflecting the agency's expertise. Further, the agency must have given affected parties sufficient notice of its interpretation and be mindful of relevant reliance interests.
Rather than complicate the Auer doctrine with what looks like a new five-part test, Justice Gorsuch would have ripped the Band-Aid off all at once, tossing out Auer and instructing courts to consider the persuasiveness of agency interpretations, as is done under Skidmore, but not give agencies binding deference in any circumstances. Not only would this eliminate an erroneous precedent, it would also avoid creating a confusing doctrinal mess.
Both Roberts and Kavanaugh wrote separately to suggest that the difference, in practice, between the approaches offered by Kagan and Gorsuch may not be all that great, as in both cases, courts are instructed to consider the regulatory text before consulting the agency's opinion and because both approaches help guard against opportunistic agency interpretations of their own actions, such as may occur in the heat of litigation. If so, this may have been the result of negotiation between Kagan and the Chief Justice, insofar as Roberts may have sought to cabin Auer deference as much as possible in return for his vote not to formally overrule it.
For those of us who argued the Court should overrule Auer, and submitted amicus briefs to this effect, Kisor is a disappointment. Nonetheless, it is heartening that even Justice Kagan recognized the potential dangers of unconstrained deference to agency interpretations of their own rules and that every justice on the Court saw some value in reining in the doctrine.
Two other tidbits: First, because the Chief Justice joined Justice Kagan's Kisor opinion, the Court missed out on the opportunity to overturn a third precedent for the term, so the Roberts Court is not likely to surpass its post-War predecessors in the rate with which it overturns precedents any time soon. This is still the stare decisis Court.
Second, the Court's four liberals anchored the judgments in all three decisions today, which is somewhat surprising in that we generally expect this to be a conservative Court. While I doubt this is the outcome we will see tomorrow, it is interesting that the replacement of Justice Kennedy with Justice Kavanaugh has not produced (yet) led to a conservative revolution.
Consulting the SCOTUSBlog Interim StatPack one sees that of the Court's 5-4 decisions this term, only 6 have been decided along traditional Right-Left lines with the conservatives in the majority. More often (so far this term) we have seen the five justice majorities consisting of the four liberal justices and one conservative justice. Counting today's opinions (and including Kisor), we've seen that happen 9 times so far this term—and that's not what anyone was expecting.