SCOTUS Watch: Agency Deference

A divided Supreme Court issued a major opinion on administrative law today. The justices declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation – a doctrine sometimes known as “Auer deference.” But in an opinion by Justice Elena Kagan, the court made clear that the doctrine has limits, and it will not apply in every scenario in which an agency is interpreting its own rules.

I don't know how "shocking" this opinion is at the end of the day.

As Roberts notes in his concurrence (unlike the other conservatives, he concurred with the opinion itself if not certain sections; the rest concurred in judgment), the subject at hand is different from (to quote SCOTUSBlog again) "Chevron deference, which generally requires courts to defer to an agency’s interpretation of ambiguous statutes enacted by Congress."  Justice Kagan summarized and tinkered with the doctrine, “not quite so tame as some might hope, but not nearly so menacing as they might fear.”  I personally thought retaining the doctrine in a somewhat weaker form was possible.

Kavanaugh (with Alito) is likely right to agree with Roberts that at the end of the day there is not too much distance between Kagan and Gorsuch's positions.  If a lower court judge wants to show less deference, it is likely that in most cases they probably can find a reason.  But, Kagan's opinion (partially a plurality -- more can be done to clarify this) probably still has some bite, including the discussion on the importance of deference here where agencies are deciding various very technical policy questions.  As the "shocking" article notes: "the outcome in Kisor suggests that there is a meaningful distance between Roberts and the more nihilistic members of the court’s conservative majority."

Besides, Kagan is a good wordsmith and it is pleasure to read the opinion.  Justice Alito has his own charms, repeatedly in high snark.  Dissenting in the Gorsuch's (Stolen Seat) opinion [Breyer concurred on narrower grounds]: "Today’s decision is based in part on an opinion that is unpardonably vague and suggestive in dangerous ways." Given Gorsuch is so concerned about vagueness, that might have left a mark. Also, says Gorsuch is not "originalist" and references a bad "trip."*  He challenges Gorsuch's history in the wine regulation case as well, including at one point basically asking him "really?"  Alito writes for a 7-2 Court (Thomas also dissented), leading one to wonder how he suddenly became Mr. Unity.

It was noted that Alito did not have many opinions so that he would be busy in June, but so far, his  opinions for the Court lacked much "conservative special"  (like Hobby Lobby).  The fact Gorsuch (finding another time to split with the other tainted Trumpite) joined the liberals again today should not lead one to forget he is not TOO big of a friend of criminal defendants.  As to his concern for "liberty" in general, see his votes in the travel ban case.   To toss it in there, a lawyer who will work on a podcast with the author of that article wrote this good article on women lawyers using social media.  One more opinion day.

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* Justice Alito's dissent is rather strong because he thinks Gorsuch has bigger game on what constitutional rules are required for supervised release, which covers a lot of people. As a general rule, when a matter is in doubt, I support the due process friendly opinion.  But, unsure how wrong Alito is though Breyer's opinion probably is correct. Do find Alito's repeated appeals to originalism a bit much except as good rejoinder to Gorsuch laying it on too thick.  Which seems to annoy Alito too at times.

Gorsuch (like Kavanaugh in the Flowers peremptory challenge opinion, the one Mr. Liberty dissented from) has a paean to juries.  Something not around much in the day of plea bargains though history suggests such worship is a bit over the top in general.  Like when I listen to him in oral argument, you get the idea Gorsuch is really into his role.  Just loves fighting the good fight, in his chuckling way, in a stolen seat.  Grr.