The Volokh Conspiracy

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

Much Ado About Chevron.

How much will actually change after Loper Bright?


Even when the Supreme Court changes course, the lower courts do not always fall in line. Old dogs do not like new tricks. The archetypal example is Heller. Even after the Supreme Court recognized an individual right to keep and bear arms, the lower courts actively resisted the case for more than a decade. Judges didn't like guns, and Heller didn't change much. Virtually every gun control measure survived scrutiny. Not much changed before and after Heller. Perhaps Bruen was a brief respite from that change, though Rahimi may usher in more of the same.

Will Loper Bright be treated in a similar fashion? For decades, lower-court judges have been content to defer to the executive branch on difficult legal questions. With Chevron gone, the courts will now have to find the "best" answer. (I kept thinking of Melania Trump's "Be Best" campaign). As the Chief Justice sees things, that task will involve independent legal judgment. But would we really know if a judge decides, as a matter of course, that the answer provided by the government is the "best" answer? After all, they have the requisite expertise. Call it Chevron in exile.

How much will change because of Loper Bright? I know there are many empirical studies about how often the government wins when Chevron is applied. Chief Justice Roberts scoffed at one such study by Kent Barnett, Christina Boyd, and Chris Walker:

Citing an empirical study, the dissent adds that Chevron "fosters agreement among judges." Post, at 28. It is hardly surprising that a study might find as much; Chevron's second step is supposed to be hospitable to agency interpretations. So when judges get there, they tend to agree that the agency wins. That proves nothing about the supposed ease or predictability of identifying ambiguity in the first place.

Perhaps in a few years, similar studies can be performed about the new regime. Has the executive branch's win-loss rate changed substantially? How much will Loper Bright really change things?