The Volokh Conspiracy

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Seven Reschedules, Four Relists, Zero Joins for Justice Gorsuch's Chevron Dissental

Justice Gorsuch is still at Step 0 of overruling Chevron.


On Monday, the Supreme Court denied certiorari in Buffington v. McDonough. This case, brought by the New Civil Liberties Alliance, expressly asked the Court to overrule Chevron. Justice Gorsuch dissented from the denial of certiorari. He wrote a sixteen-page opinion that excoriated Chevron. Here is the conclusion:

No measure of silence (on this Court's part) and no number of separate writings(on my part and so many others) will protect them. At this late hour, the whole project deserves a tombstone no one can miss. We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law's meaning in the cases that come before the Nation's courts. Someday soon I hope we might. 

But no one joined Justice Gorsuch. And it wasn't for a lack of trying.

The briefing concluded on April 26, 2022. The petition was originally scheduled for the May 12, 2022 conference. But it was rescheduled before that conference, as well as conferences on May 19, May 26, June 2, June 9, June 16, and June 23. My guess is that Gorsuch was trying to cobble together votes for a grant. These were "reschedules" rather than "relists." The former suggests there is movement afoot; the latter suggest a dissent is being prepared. Now during this period, the Court was otherwise occupied with Dobbs and Bruen, so attention may have been divided.

Alas, the summer did not prove fruitful. The petition was not acted upon at the September 28 conference, and was relisted. The petition was then relisted again after the conferences on October 7, October 14, and October 28. I surmise during this relist watch, Justice Gorsuch was polishing his dissent. The petition was finally put out of its misery on the November 7 order list, accompanied by Justice Gorsuch's dissental.

It seems there is no interest at this point in overruling ChevronKisor was probably the closest the Court will get. If the Court couldn't even muster five votes to nix Auer deference, then Chevron is probably a bridge too far. In any event, the Court has already overruled its fair share of Burger-Court precedents: RoeLemon, Abood, and (soon enough) Bakke. Often, the current Roberts Court is called the anti-Warren Court, but I think it would be more accurate to call it the Anti-Burger Court. The Court leaves in place the foundational abuses of the judicial role by the Warren Court, such as GriswoldEngel v. Vitale, and Miranda, but instead nibbles around the edge of the follow-up decisions from the Burger era.