No 'Chevron' SCOTUS Clarity Likely This Term
Nothing is pending at the Supreme Court this term that will likely lead to dramatic changes in the Chevron doctrine, but some narrowing could be inevitable, experts told a Free State Foundation webinar Friday. Courts “regard telecom as something that’s…
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highly technocratic and that generalist judges aren’t in a very good position to answer,” said Christopher Yoo, University of Pennsylvania Law School professor. The most likely next step for SCOTUS is a reinterpretation of when Chevron should apply, he said. Any new look at the doctrine reflects growing skepticism of expert agencies, Yoo said. “We’ve seen a discrediting of expertise,” he said: “We’ve started to see agencies as captured.” The trend is for justices to be “ideologically sorted and polarized,” which is clear in appointments to the court under then-President Donald Trump, said Cato Institute's Ilya Shapiro. Since becoming a justice in 2017, Neil Gorsuch “has continued his campaign against the awesome power of the administrative state, both regarding judicial over-deference to agencies and congressional over-delegation of legislative power to the agencies,” Shapiro said. “Where Gorsuch wants to pare back the scope of judicial deference, [Justice Brett] Kavanaugh has focused on the occasions where deference is applied in the first place.” Justice Amy Coney Barrett is likely to support narrowing deference, he said. Shapiro said the court could parse the difference between deference to administration agencies and independent agencies like the FCC. As the newest justice, Barrett is "a bit of a wild card,” said TechFreedom Internet Policy Counsel Corbin Barthold. Kavanaugh might want to narrow Chevron, not overturn it, Barthold said. There aren’t the votes to overturn Chevron, “but it’s still open that it might get narrowed,” he said. The court doesn’t have any cases on its current docket “that squarely raise the Chevron doctrine, but of course any case involving a government agency statutory interpretation could raise it,” said Jeffrey Lubbers, American University professor of practice in administrative law. The court heard the FCC's appeal of Prometheus IV Tuesday involving media ownership rules (see 2101190070).