This article looks at how Chevron deference has fared at the Supreme Court since John G. Roberts became Chief Justice. The article looks at Chevron deference at the Roberts Court from three distinct angles. First, the voting records of individual Justices in cases citing Chevron are examined to shed light on the strength of each Justice’s commitment to deference to agency statutory construction. Second, a select sample of opinions citing Chevron are qualitatively examined to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the article looks closely at how the Roberts Court has handled one of the most important issues under Chevron, namely the boundary between Chevron deference and judicial review under other standards of judicial review such as the arbitrary, capricious standard that governs all reviewable agency action.
On the first angle, in an earlier article, I presented data on Justices’ voting records. In that article, I looked at all of the Supreme Court decisions during Chief Justice Roberts’ first four terms in which Chevron was applied by the majority or argued or in a dissent. What I found was that the Court generally split along familiar ideological lines most of the time, with liberals deferring to liberal agency interpretations and conservatives deferring to conservative agency interpretations. The updated data presented in this article confirm this general pattern although in recent years the Court has deferred to agency decisions in a higher proportion of the cases. On the second angle, a perusal of decisions citing Chevron shows that the Roberts Court has not been more successful than the Rehnquist Court in bringing a measure of coherence to the Chevron doctrine. On the third angle, the Roberts Court has failed miserably to clarify the boundary between Chevron and other standards of review such as arbitrary, capricious review. In short, there is no way to know in advance whether a case should be decided under the Chevron doctrine or under the arbitrary, capricious standard specified in the Administrative Procedure Act.
Chevron at the Roberts Court: Still Failing after All These Years,
83 Fordham Law Review 731
Available at: https://scholarship.law.bu.edu/faculty_scholarship/205