Publication Title
Widener Commonwealth Law Review
Volume
34
Page
1
Year
2024
Abstract
Chevron is dead. What does this mean for judicial review of agency interpretations of statutes in the lower courts? Perhaps not much. Using new data of circuit court decisions from 2012 and 2022, this Essay examines how lower courts changed their decision-making as the Supreme Court became more skeptical of Chevron deference. This Essay finds that---contrary to the assertion of some justices---circuit courts had not stopped applying Chevron in the lead up to Loper Bright. Moreover, courts agreed with agency interpretations of statutes at similar rates in both 2012 and 2022. Nevertheless, the data shows that the Supreme Court's skepticism toward administrative governance encouraged lower courts to change the reasoning behind their decisions. By 2022, circuit courts decided most cases at Chevron "step one." At the same time, agency win rates increased at step one. In 2012, circuit courts accepted the agencies' interpretations in 42.5% of disputes resolved at step one. By 2022, they accepted the agencies' interpretations in 67.3% of disputes resolved at step one.
These empirical results help answer two questions lurking after the Supreme Court's decision in Loper Bright v. Raimondo. First, why did the Supreme Court decide to overrule---rather than clarify---Chevron? From the lens of positive political theory, the results suggest that the Supreme Court was reassured that circuit courts would comply with its decision because the circuit courts decided a majority of cases using traditional tools of statutory interpretation. Second, how will Loper Bright influence judicial review of agency interpretations of statutes? The results suggest that agencies will continue to win at high rates in mundane cases but that harder cases may be decided based on the ideology of the judges.
Recommended Citation
Nicholas Bednar, Chevron on the Eve of Loper Bright, 34 Widener Commonwealth L. Rev. 1 (2024), available at https://scholarship.law.umn.edu/faculty_articles/1137.
Rights
http://rightsstatements.org/vocab/InC/1.0/
