Examining the Explicit Role of Deference in Supreme Court Decision Making

• In Event: Balancing Acts: The Supreme Court and Interbranch Politics

Abstract

Bureaucratic agencies and the courts are policymakers with few democratic checks. Whereas the bulk of scholarship on the United States Supreme Court focuses on publicly salient constitutional cases like Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), this study takes a different approach through examining cases in which the policy relationship between agencies and the courts is highlighted – cases involving the interpretation of federal statutes. The United States Supreme Court frequently establishes legal standards which govern certain areas of the law in cases heard by the Court, and at times it limits or abandons their use as a function of developments in the law and politics. This study examines the Court’s use of deference since its major articulation in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). The significance of studying this issue will become increasingly important given the Court’s consideration of the future of Chevron deference in the cases of Relentless, Inc. v. Department of Commerce (Docket No. 22-1219) and Lopez Bright Enterprises v. Raimondo (Docket No. 22-451), which are on the Court’s docket for OT 2023.

This study operationalizes the explicit use of deference as the Court’s citation of cases in which deference is spelled out – Chevron v. NRDC, 467 U.S. 837 (1984), Auer v. Robbins, 519 U.S. 452 (1997), and Christensen v. Harris County, 529 U.S. 576 (2000). Using Shepard’s Citations to identify cases in which deference has been explicitly cited, this study examines the universe of cases since 1983 (sourced from the Supreme Court Database, N = 1,964) which involve federal statutes. Then, cases are typified along two axes. First, cases are distinguished by whether the federal statute in question receives positive or negative treatment from the Court. Second, cases are distinguished by whether deference was explicitly used in deciding the case. This is accomplished by identifying citations to one or more of the precedential deference cases listed above. By typifying these cases, this study provides a clearer understanding of characteristics common in cases that experience deference. Some of these characteristics include the variation in the types of petitioners and respondents who bring cases that are subject to deference, the presence of deference in select constitutional cases (an area of the law in which deference is unexpected), and the prevalence of cases subject to deference which do not directly involve a federal agency.

Findings from this study highlight how infrequently deference is explicitly used across the universe of cases in which it is a possibility (used in only 11.5% of eligible cases). Implications from this study and next steps are to explore how the Court implicitly defers in other decisions, an attempt to discern the Court’s strategy of employing its own legal standards. This study falls in a broader research agenda addressing the strategic decision making of the Court.

Considering the theme of the APSA Annual Meeting and Exhibition: “Democracy: Retrenchment, Renovation, and Reimagination,” this study directly invokes the role of courts in maintaining democracy in the law. Deference to the elected branches of government is perhaps one of the strongest supports for democracy in policymaking, and this study provides an insight into the ways in which the Court utilizes deference. With the two cases on the Court’s OT 2023 docket directly addressing the role of deference, this research endeavor cannot wait, as understanding the utility of deference in a changing legal landscape is paramount.

Author

• George Thomas Fields, University of Tennessee, Knoxville