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 Chevron. Kisor 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: Roe, Lemon, 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 Griswold, Engel v. Vitale, and Miranda, but instead nibbles around the edge of the follow-up decisions from the Burger era.

Comments

[Michael P]

What’s the theory that Miranda is a “foundational abuse[] of the judicial role”? That courts lack the authority to exclude evidence, and the proper remedy is instead to sue the government or government agents who improperly obtained that evidence?

[Ridgeway]

I'd argue that the Supreme Court is not empowered to craft prophylactic rules of criminal procedure and evidence out of whole cloth.

That is not to say that the rule implemented by Miranda was not a wise one, nor that it has been well accepted over the ensuing years.

However, it is a rule that the court never had the authority to issue in the first place.

[apedad]

IANAL so I had to remind myself what the difference between Auer and Chevron is.

"In the context of Auer deference, courts uphold agency interpretations of ambiguous regulations unless those interpretations are plainly erroneous or inconsistent with the regulation. Unlike Chevron deference, which requires that a federal court defer to an agency's interpretation of a statute that the agency administers if the underlying statute is unclear and the agency's interpretation is deemed reasonable, Auer deference only applies to an agency's interpretation of its own unclear regulation."

What is the alternative if Auer/Chevron were to be overturned?

Why shouldn't an agency be authorized to interpret its own regulations?

And if Congress doesn't like how an agency interprets a statute, they can always tighten it up.

[Michael P]

The alternative would be using the usual rules of statutory construction to decide what the statute or regulation means, rather than deferring to the agency responsible for enforcing it.

Courts shouldn't give much deference to how an agency interprets an ambiguous regulation that the agency wrote -- the agency has the opportunity to resolve any ambiguity, or even largely to avoid it in the first place.

Why should courts treat ambiguous laws differently when police and prosecutors enforce the laws than when other agencies enforce those laws? Take the rule of lenity as a particular example of when Chevron deference makes a difference.

[Sarcastr0]

The usual rules of statutory interpretation as applied to mixed cases of facts and law by a court who is not an expert on either the particular law nor the particular facts.

You and I both know that ambiguity is inevitable until we invent telepathy - blaming the agency for it is just hostility.

And your analogy that police are the experts on criminal law just as agencies are as to their regulations doesn't really fly very well.

[David Nieporent]

Courts shouldn’t give much deference to how an agency interprets an ambiguous regulation that the agency wrote — the agency has the opportunity to resolve any ambiguity, or even largely to avoid it in the first place.

Worse, it gives them an incentive to craft ambiguous regulations, because then they have the maximum possible flexibility.

[rloquitur]

If Congress doesn't like . . . . it ain't easy to get a statute passed . . . .

[Brett Bellmore]

"Why shouldn’t an agency be authorized to interpret its own regulations?"

Because people must take actions based on what the regulations mean, and then can run afoul of what the agency later says they mean, you need the latter to have some reliable relationship to what a person might think the regulation means up front.

So it's not so much that they can't interpret their own regulations, but that they need to do so in a manner where the subjects of the regulation aren't just putting themselves at hazard by guessing.

[ReaderY]

What is the actual practical diffwrence between rescheduling and relisting? Are they simply two different names for a decision to reconsider the case at a later date? Or is there an actual difference between them?

Does rescheduling mean a decision has not yet been made? Does relisting mean a decision has been made, but will be announced later?

[Voize]

According to Kozinski and Burnham's 2012 Yale Law Journal article the term dissental refers exclusively to a dissent from a denial of rehearing en banc, and the proper label for a dissent from denial of cert is certsent. Really rolls off the tongue, don't you think?

[ReaderY]

You sent a breath mint?

[Voize]

Huh. My first thought was Certsent Lannister.

[rloquitur]

Gorsuch is a bit of a ninny. He doesn't seem to get that there is a work-a-day world out there that judges must take into account. Statutes aren't perfect etc. etc.

And here he is picking a dumb case--look, I think the VA got it wrong too, but the government creating some sort of waiver in its regs, while typical government BS, is something that is in our legal DNA (so to speak).

He needed to address the waiver issue instead of just pointing at the statute. Ubi jus, ubi remedium ain't the law.

[CJColucci]

I took Administrative Law pre-Chevron. (Hard to recall now just what the subject matter was considering how much time now gets devoted to Chevron, Auer, and the like.) Even pre-Chevron, courts frequently deferred to an agency's reasonable interpretation of its enabling legislation rather than try to arrive at the "best" statutory answer. The practice was spotty, and the degree of deference varied based on the proclivities of the judges and the respect the agency commanded. When Chevron came out, it didn't seem to be a big deal; just a rather vague codification of existing practice. And even now, its application seems to be spotty, and the degree of deference varies based on the proclivities of the judges and the respect the agency commands.
Perhaps judges are currently applying Chevron (which, after all, says that when a court can discern a "correct" answer, there is no place for deference) a bit too loosely and need to be reined in some, but something like Chevron seems to me to have been the normal practice and probably inevitable. If Gorsuch gets his way and Chevron is formally shown the door, I predict that it will come back through the window, making far more significant changes in what judges say rather than in what they do. A change more terminological than substantive.