Justice Kennedy’s parting swipe against judges deferring to administrative agencies

Justice Anthony M. Kennedy’s final term surprised some court watchers with votes and written opinions that “threw in the towel” on old fights, but in Pereira v. Sessions, one of the less-covered cases this term, he wrote a separate, concurring opinion that took a broad and aggressive swipe at a doctrine at the core of how our government works.

The doctrine is called Chevron, so-named for the 1984 case Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. It stands for idea that judges should defer to administrative agencies when it comes to interpreting statutory language that’s ambiguous, unless the agency’s interpretation is unreasonable. The rationale is that agencies have subject-matter expertise that judges lack, and therefore judges should go along with some agency determinations rather than substituting their own views. In a strained analogy, you could think of judges and agencies as dance partners, with Chevron telling them which partner has the lead. And the implications for which entity has the lead are incredibly significant and widely-felt. For example, Chevron doctrine could very well control the fate of FCC’s order on net neutrality, because Chevron could tell us whose interpretation of communications law matters most: FCC’s or the court’s?

In the last few years, judges and scholars, and not just conservative ones, have expressed skepticism about Chevron along at least two lines. First up are the implementation concerns, for example, what type of agency decisions should enjoy this form of deference? The answer could lead to a more refined version of Chevron that recognizes a more complex administrative state than existed in 1984 when Chevron was decided. The second set of concerns is more fundamental, questioning how the doctrine squares with the Constitution’s distribution of powers across the three branches of government and whether judges are shirking their responsibilities when they defer to agencies. This could lead to a vastly more significant change, with agencies losing deference from the courts, perhaps even entirely.

In his concurring opinion in Pereira, Kennedy goes out of his way to amplify both sets of concerns. He bemoans what he calls the “reflexive deference” the lower courts give to broad categories of agency actions. He expresses doubts about “how courts have implemented” Chevron. If he merely pushed back in implementation, it would have been a signal that he’d prefer to see less deference granted, but that he was comfortable with the general idea. He goes on, though, to call for reconsideration of “the premises that underlie Chevron.” By doing so, he signals openness to questioning Chevron’s very existence.

It’s not entirely surprising that he expresses this view, given the way he cast prior votes. What’s interesting is that he took pains to make this point. He could have simply voted with the majority of justices in this 8-1 decision. Before this case, Kennedy had not written directly about Chevron. Without his opinion in Pereira, you’d be left to read the tea leaves, including Kennedy’s votes on other cases involving Chevron. But by choosing to write a separate concurrence, he lays plain his views for all to see.

Of course it is reasonable to ask whether any of this matters, given that Kennedy has announced his retirement from the bench. Pereira was issued the week before his announcement, and the very fine initial analyses of his opinion didn’t have the benefit of knowing that he was planning to retire. Now that we know he’s retiring, his opinion in Pereira reads like a note left on the kitchen counter for the next tenant. Whether the next justice follows through, though, remains to be seen.

Vice President Mike Pence said, in his tweet thanking Justice Kennedy for his service on the Supreme Court, that the president “will nominate a strong conservative, in the tradition of the late Justice Scalia.” This rather firmly implies that the President isn’t planning to fill Kennedy’s seat with someone who holds Kennedy’s views. And while Chevron won’t top the list of issues at stake with the next nomination, Kennedy’s Pereira opinion may increase the odds that the issue will come up in some way.

Justice Neil Gorsuch faced questions about his views on Chevron during his confirmation process, thanks in part to an opinion he wrote a few years ago when he was on the 10th Circuit, in which he concurred with himself to criticize Chevron heavily. As we await President Trump’s nominee, and the confirmation hearings that will follow, we can likely count on some discussion of what Justice SamuelAlito described, in his dissent in Pereira, as this “important, frequently invoked, once celebrated, and now increasingly maligned precedent.”

Bridget C.E. Dooling is a research professor at the George Washington University Regulatory Studies Center. She served as deputy chief and analyst in the Office of Information and Regulatory Affairs at OMB from 2007 to 2018.