Why Did Conservatives Change Their Tune on Chevron?

If you've followed the Roberts Court for a while, you probably weren't too surprised to hear that the Loper Bright v. Raimondo decision overruled Chevron v. NRDC.  (If administrative law isn't your thing, my earlier blog post includes a brief Chevron primer.)  Courts, Loper Bright tells us, should not defer to agencies' interpretations of the statutes they administer, not even if the statutes are ambiguous. Statutory interpretation is the province of courts, and the judiciary should not relinquish that role to agencies.  

As I discuss in my previous post, Loper Bright is of a piece with other Roberts Court administrative-law decisions, so from one perspective it seems like the predictable product of a conservative Court. The New York Times' commentary on Loper Bright noted that curbing the administrative state has been a long-time goal of the conservative legal movement.  Given that conservatives dominate today's Court, we shouldn't be surprised that they would do away with Chevron.  

If we take a somewhat longer historical view, though, it becomes clear that Chevron deference hasn't always been the bête noir of legal conservatism.  Chevron was a unanimous decision--one that actually upheld an industry-friendly interpretation offered by the Reagan administration's EPA. Chevron always provoked a good amount of scholarly writing, but critiques of the doctrine didn't initially break down along familiar conservative/liberal lines. Justice Scalia, the Court's conservative leader for three decades, was, for most of his career, a fan of Chevron because it was a neutral doctrine that tipped the scale in favor of the current presidential administration.  Admittedly, late in his life, Justice Scalia seems to have reconsidered his views on the topic, but for most of his tenure, Scalia believed in judicial deference to administrative agencies.    

So what happened?  Why did Chevron deference go from a (relatively) non-partisan administrative law doctrine to one of conservatives' most hated decisions?  Phrased differently, why would all six Republican-appointed Justices today vote to overturn a unanimous opinion that was embraced for decades by the Court's most outspoken and prominent conservative?

I think there are several plausible explanations. Before we get to them, though, let's dismiss one at the outset.  This view is that Chevron took the Court by surprise and that we ought not draw any inferences from its unanimity because no one was really paying attention.  On this theory, Justice Stevens essentially sneaked into Chevron a massive change in administrative law, and by the time the conservatives realized what he was up to, it was too late to do anything about it. 

This account makes much hay of the fact that when the Court took Chevron, it was considered an obscure case about a highly technical environmental law concept.  Nobody expected it to announce a major doctrine of administrative law.  Three Justices didn't even participate, and when Justice Stevens circulated his draft late in the term, even the participating Justices didn't have time to respond.  Chevron was, as Professor Thomas Merrill has put it, an "accidental landmark."  (The Chief Justice vaguely gestures at these defects in Chevron when he notes that it was decided "by a bare quorum of six Justices.")  

All that is true, but that doesn't mean that Justice Stevens hoodwinked the conservatives into accepting a massive change in administrative law.  Justice Stevens's approach to judicial review of agency statutory interpretation survived for forty years.  The Justices, conservative and liberal alike, had plenty of opportunities to cabin Stevens's opinion so that it did not cast a long shadow throughout administrative law.  They even could have abandoned it altogether.  They didn't do this, though.  Instead, they invoked Chevron again and again.  As Professor Merrill notes, the Court applied the Chevron framework in six cases in 1985-86, two the following term, and five more the term after that.  Perhaps this was because many of the Justices agreed with Justice Stevens that Chevron was simply a restatement of existing law.  (This view is sharply at odds with Chief Justice Roberts's contention in Loper Bright that Chevron "triggered a marked departure from the traditional approach" to these kinds of questions, but it does not appear that the Chevron Court believed it was markedly departing from anything.)

Even more to the point, as Merrill also explains, then-Judge Antonin Scalia deserves significant credit for the Chevron doctrine that developed out of the initial case.  Professors Merrill and Hickman recount that when Scalia joined the Supreme Court, he made the promotion of Chevron one of his causes.  Justice Gorsuch's Loper Bright concurrence makes the exact same point.  Lest one get the idea that today's Court is casting aside its judicial icon, Justice Gorsuch also cites a couple of opinions from late in Scalia's life to emphasize that Scalia "began to express doubts over the very project he had worked to build."  Gorsuch agrees, though, that early on (and, indeed, for most of his Court tenure), Scalia was all-in on Chevron deference.

Notably, Chevron wasn't just a conservative cause.  Judge Patricia Wald, Scalia's liberal D.C. Circuit colleague, also played an important role in promoting Chevron.  The resulting doctrinal framework, then, did not divide judges along ideological or party lines. 

It does today, though. The six Justices in the Loper Bright majority were all Republican appointees; the three dissenters were all Democratic.  To ask the question again, why did a bipartisan doctrine become so deeply partisan? 

One possible explanation might be methodological.  Today's Court (thanks in large part to Scalia's influence) approaches questions of statutory interpretation with a far-more textualist eye than the 1980s Court did. With that in mind, the Chief Justice held that Chevron deference is incompatible with Section 706 of the Administrative Procedure Act (APA), which states that "the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." Loper Bright basically chides the Chevron Court for failing to read the APA.  Perhaps the Court's embrace of textualism explains its changed attitudes towards Chevron?

There might be a little something to this. Today's Court not only embraces textualism but is very confident in its ability to do textualism right. If you believe that judges can usually find clear answers in statutory texts, then you may also be inclined to believe that courts should not cede their interpretive role to administrative agencies.  The self-proclaimed textualists in the Loper Bright majority are supremely confident that they have the right answers.  This temperament differs dramatically from the judicial humility that Justice Stevens brought to Chevron.  Stevens was reported to have explained his vote in Chevron by saying, "When I am so confused, I go with the agency."

The changed judicial temperament has some explanatory power.  A judge who believes he has all the right answers is less likely to defer than a judge who admits that some questions are extremely difficult. 

For the most part, though, I don't find the methodological-transformation explanation very persuasive.  While Antonin Scalia wasn't yet on the Court that decided Chevron, he was there a couple of years later.  In addition to promoting Chevron, he was busy promoting textualism.  While he might have changed his mind about Chevron by the mid-2010s, for most of his career Justice Scalia did not consider Chevron deference incompatible with the APA.  Given his textualist inclinations, it's unfathomable that he wouldn't have bothered to consider the question. 

Indeed, it's not at all clear that Chevron was incompatible with the APA.  As Justice Kagan points out in her dissent, just because the APA instructs courts to "decide all relevant questions of law" does not mean that it prescribes a de novo standard of review.  To the contrary, as Kagan adds, "Section 706 does not specify any standard of review for construing statutes."  There's a good argument, then, that the text of the APA doesn't require Chevron's demise. 

In any event, the textualist case against Chevron is very far from a slam dunk.  We should therefore be skeptical that the methodological transformation that has occurred over the last forty years does much to explain the shift from Chevron to Loper Bright.  (It's also questionable whether the Court is quite as devoted to textualism as it claims. As I've discussed elsewhere, the current Court also has a habit of abandoning statutory texts when they are inconvenient.) To be sure, there's a textualist case to be made against Chevron, but there's a textualist case in its favor as well. 

Another theory to explain conservatives' abandonment of Chevron is that the Court's increasingly conservative make-up has emboldened Justices to push for results that might previously have been unattainable. One problem with this theory is that the current conservatives' hostility to the administrative state predated the super-majority they gained after Justice Barrett replaced Justice Ginsburg.  More importantly, it's not like 1980s-Scalia was biting his tongue, waiting for conservative colleagues to join him to overrule Chevron.  To the contrary, Scalia himself helped drive Chevron's success.  (Scalia also almost never bit his tongue.)

The Court's changed composition might have played a role, though, in another way related to different visions of the judicial role.  Chief Justice Roberts's Loper Bright opinion emphasizes that under Marbury v. Madison, it is the role of courts to say what the law is.  Chevron, the Court tells us, is wrong in part because it cedes to agencies the judiciary's constitutional prerogative to interpret the law.  Justice Thomas's and Justice Gorsuch's concurrences build further on these separation-of-powers ideas.  Today's conservative Justices guard jealously federal courts' interpretive prerogative.

The 1980s Court that first wrote and then developed Chevron wasn't blind to these issues, but it also had other concerns.  Justice Scalia, in particular, was worried about judicial aggrandizement (except when he wasn't).  To 1980s-Scalia, one of Chevron's virtues was that it diminished judicial power by denying courts the authority to decide the meaning of ambiguous statutes in technical areas they didn't know much about.  Justice Scalia was used to what he considered overreaching liberal judges, so he didn't trust courts, so he wanted to limit their power.  Perhaps because they know they dominate the Court, today's conservatives are far less concerned about judicial overreach.  (Keith Whittington, one of the nation's foremost originalist scholars, makes a related point when he notes that conservative Justices in the late 1980s and early 1990s needed a new "governing philosophy" when they found themselves in control of the Court.) 

This explanation--that changes in the composition of the federal judiciary and Supreme Court prompted conservative Justices to favor judicial aggrandizement rather than judicial restraint--ties into a broader point about larger transformations in our political landscape.  Broad institutional shifts within the branches of our federal government may have prompted a transformation within American conservative politics, which in turn encouraged ideological shifts within legal conservatism. 

How might this have happened?  While the Republican Party has undergone some massive changes over the past four decades, it usually has embraced a deregulatory platform that privileges liberty and the free market.  That hasn't much changed in the forty years between Chevron and Loper Bright.  

What has changed, though, is the distribution of power within our political system.  When the Court decided Chevron in 1984, Democrats had dominated both Houses of Congress for decades (with a few exceptions).  Democrats controlled the House for a four-decade span from the mid-1950s through the mid-1990s.  They mostly (but not always) controlled the Senate, too.  Though Republicans had taken back the Senate by the early 1980s, they could have been forgiven for thinking of Congress as an institution run by Democrats. 

So too were Republicans in the 1980s used to thinking of the federal courts as liberal.  Though the U.S. Supreme Court and federal judiciary more generally were becoming substantially more conservative during the Reagan years, the Warren Court still loomed large in conservatives' minds.  Courts weren't conservatives' friends--and, even if they were, conservatives of this era at least said they believed in judicial restraint and minimalism (because they wanted liberal courts to restrain themselves).  

The upshot of all this is that if you were a Republican in the 1980s, you probably thought the executive branch was your best bet to advance your agenda.  Deference to administrative agencies sounded pretty good because liberal courts would be less likely to meddle in President Reagan's deregulatory policies.  And that's exactly what the Chevron decision did; it deferred to Reagan's EPA.  

Fast forward to the 2020s, and times have really changed.  The Houses of Congress flip back and forth between the parties, but the legislature doesn't legislate much anymore. Paralyzed by longstanding veto-gates and more recent hyper-partisanship, Congress these days struggles to get much of anything done.  To a lot of Republicans, this is a good thing because they don't believe in regulation anyway.  Democrats, though, do believe that regulation can mitigate market excesses and other threats to society.  Because they know it's unlikely that they'll be able to get anything through Congress, Democrats (when they control the White House) instead turn to executive agencies.  Republicans, in turn, recognize that most regulation nowadays is going to happen through the administrative state, so they attack it.  Rather than merely criticizing particularly costly or offensive regulations, many Republicans have embraced the hardball tactic of calling into question the administrative state's entire legitimacy. 

These political shifts help explain why so many Republicans today attack the administrative state writ large, which in turn helps explain shifts within legal conservatism, including the demise of Chevron.  (I realize, of course, that this account oversimplifies a lot of very complicated political history, but the broad contours here are nonetheless useful.)  Of course, lawyers and judges are good at cloaking policy preferences in the language of law.  To defend its administrative law rulings, the Roberts Court has articulated a hyper-rigid separation of powers that insists that public policy be made only by Congress (notwithstanding the nation's long history of delegation) and that courts and courts alone interpret the law (notwithstanding the deference courts extended to agencies for decades).  For these ideas, the conservative Justices probably owe some credit to the Federalist Society, which for years has been refining the attack on the administrative state generally and Chevron specifically.

The Roberts Court conservatives surely believe the legal justifications they set forth in Loper Bright and other decisions.  But conservative Justices in past generations embraced those same legal principles and yet reached different results.  The conservatives on the Burger and Rehnquist Courts cared about separation of powers and judicial independence, too, but they didn't think that those ideas undermined Chevron.  My hypothesis is that as the institutional distribution of power in Washington shifted, conservative legal thinkers needed a new theory to undermine the institutions most likely to imperil their free market preferences. Accordingly, they started embracing more rigid visions of separation of powers and judicial supremacy, thus facilitating the shift from Chevron to Loper Bright.  To the extent Justice Scalia late in life changed his views on this topic, it's possible that these new political realities were (consciously or subconsciously) part of his calculus. 

Of course, broad intellectual shifts over time are complicated (and a blog post can only scratch the surface of them).  Individual Justices, too, may have their own reasons for their particular views.  It seems likely, though, that the shift within the legal conservative movement owes much to broader shifts within American political institutions and conservative politics more generally and that those changes help explain the recent major changes in administrative law.