The Volokh Conspiracy

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John Roberts and the Professoriate (Updated)

He really doesn't care what we think.


Long ago, Chief Justice Roberts signaled that he doesn't very much care what academics think. What admin law professors think about Chevron is no different than what Bulgarian evidence professors think about Immanuel Kant. And Roberts was sure to tell us that in Loper Bright:

[Chevron's] flaws were nonetheless apparent from the start, prompting this Court to revise its foundations and continually limit its application. It has launched and sustained a cottage industry of scholars attempting to decipher its basis and meaning.

Underneath the scorn, there is something to this statement. Over the past two days, admin law professors have had something of an existential moment: the world they have known for four decades was extinguished. The "cottage industry" they've propped up is no longer. The expertise they've developed, and imparted to generations of law students, is now obsolete. This is not a pleasant feeling. For example, if the Court were to come out and reject originalism–imagine after some Court packing–what would I do? I'd be adrift at sea.

On the relevance of law professors, I remain uncertain of how Chief Justice Roberts actually views Justice Barrett. She would seem to embody the sort of person Roberts would want nowhere near Article III–a lifetime academic with no real-world practice. Professor Scalia, at least, mixed practice with scholarship. Ditto for Bork. But what about Barrett? I'm sure Roberts can flash his charm with anyone, but what does he really think of her?

Update: In my post, I initially attributed the following quote to Chief Justice Roberts, but it was from Justice Gorsuch's dissent:

The dissent suggests that we need not take the APA's directions quite so seriously because the "finest administrative law scholars" from Harvard claim to see in them some wiggle room. Post, at 18 (opinion of KAGAN, J.). But nothing in the APA commands deference to the views of professors any more than it does the government. Nor is the dissent's list of Harvard's finest administrative law scholars entirely complete. See S. Breyer et al., Administrative Law and Regulatory Policy 288 (7thed. 2011) (acknowledging that Chevron deference "seems in conflict with . . . the apparently contrary language of 706"); Kagan 212 (likewise acknowledging Chevron deference rests upon a "fictionalized statement of legislative desire").