Gorsuch on Supreme Court might impact federal agencies most of all

On Tuesday, President Trump fulfilled a campaign promise and nominated to the Supreme Court a judge whose name appeared on a list precleared by the Federalist Society and the Heritage Foundation.

Nominated by President George W. Bush and confirmed by voice vote in the Senate, Neil Gorsuch has served since 2006 as a judge on the U.S. Court of Appeals for the 10th Circuit — a federal appellate court comprising six Western (mostly Mountain West) states. Much has been written about the impact Gorsuch’s confirmation as a justice would have on the Supreme Court.

There is reason to believe, however, that Gorsuch’s greatest impact (at least in the short-term) will be on the question of how much deference courts should afford agencies when they interpret federal statutes.

While he has confronted the issue in a small number of cases, Gorsuch has expressed skepticism over the pedigree and effect of the now-dominant Chevron test. That test, which takes its name from a 1984 Supreme Court case in which it arose — Chevron v. Natural Resources Defense Council — directs courts to rule in favor of their own interpretations of a statute only if the statute is unambiguous; if a statute is ambiguous, a court should defer to an agency’s reasonable interpretation of the statute (even if that interpretation is not the one at which the court would have arrived).

Signals from Gorsuch’s court of appeals opinions indicate a desire by the judge to restore some measure of judicial supremacy over statutory interpretation. In one 2016 opinion, Gorsuch mused: “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty. … [W]here [under the Chevron framework] does a court interpret the law and say what it is? When does a court independently decide what the statute means and whether it has or has not vested a legal right in a person? Where Chevron applies that job seems to have gone extinct.”

Gorsuch must have felt strongly about this point, since he asserted it in a separate opinion concurring in a unanimous opinion for the 10th Circuit that he authored.

Contributing to Gorsuch’s anti-Chevron sentiments may be the fact that he sits on the 10th Circuit, not the U.S. Court of Appeals for the District of Columbia Circuit.

{mosads}The District of Columbia Circuit hears a lot of administrative law cases — many of its cases are administrative law cases and a disproportionate amount of its docket consists of administrative law cases as compared to other federal courts of appeals. As such, the District of Columbia Circuit invokes Chevron on a regular basis and more than any other circuit.

Supreme Court justices who have sat on the District of Columbia Circuit thus have more experience with Chevron and may appreciate (leaving its legal pedigree to the side) how its flowchart-like approach helps to resolve cases.

And there are many Supreme Court justices with District of Columbia circuit experience: Going back to the late Justice Antonin Scalia (himself a former District of Columbia circuit judge), four of the last 10 confirmed justices have previously sat on that court (as have six of the last 13 nominees).

In Gorsuch’s entire tenure on the 10th Circuit, he wrote the opinion for the court in eight cases that cited Chevron. This is not to say that Gorsuch’s evident skepticism of Chevron is wrong, only that he will, if confirmed, bring a relatively fresh perspective to the debate over Chevron’s place and vitality. Nor is it clear exactly what position Gorsuch would advance if confirmed, nor how successful he’d be at convincing his new colleagues to join him.

A review of the smattering of opinions authored by Gorsuch in which Chevron has arisen indicates that Gorsuch is open to a strategy, employed at times by Chief Justice John Roberts, to constrict the universe of cases in which Chevron applies. Gorsuch has also concluded in some cases that the clear language of the governing statute mandates — under Chevron — that the agency is bound to that clear language.

This sort of reasoning was commonly employed by Scalia; as an avowed textualist, he was apt to find many statutes unambiguous.

That Trump would nominate a judge who views Chevron with skepticism is in some ways unsurprising, and in other ways very surprising. It is unsurprising in that some news reports indicated that Trump had taken an interest in the broad effects of the Chevron doctrine, and the legislation has been introduced in the House to limit Chevron’s scope.

Indeed, limiting or overturning Chevron might provide yet another avenue for the Trump administration to invalidate Obama-era agency interpretations. At the same time, Trump has already shown a penchant, like his predecessor, to act via executive order. To the extent that that indicates a desire to rely on agencies to implement policy — without congressional approval — Trump may in the end rue the day that he nominated a judge who might limit judicial deference to agency action.

To be sure, Gorsuch, if confirmed, would in many cases provide a tiebreaking vote in favor of the more conservative bloc on the court. But that would only take the court ideologically back to last year, when Scalia was still on the court.

President Trump’s real opportunity to shift the court ideologically would arise were a second seat on the court to open up. But Chevron is an issue that does not necessarily divide the justices on ideological lines. Changes to the Chevron doctrine thus could be an early legacy of Neil Gorsuch’s Supreme Court tenure.

Jonathan Nash is a professor of law at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.

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