Thursday, March 23, 2017

Several Better and More "Pleasant" Things to Do with One's Time Than Picking on Chevron, Ranked in Order of How Much Better and More Pleasant They Are

1. Watching Gene Kelly in The Young Girls of Rochefort.

2.  Reading the new Library of America edition of the collected writings of the best American writer of fiction of the twentieth century, Jane Bowles (nee Auer, so you know she's a good egg), particularly Two Serious Ladies and "Camp Cataract."  For example:
"Have you put on fat?" Sadie asked, at a loss for anything else to say.
"I'll never be fat," Harriet replied quickly.  "I'm a fruit lover, not a lover of starches."
"Yes, you love fruit," Sadie said nervously.  "Do you want some?  I have an apple left from my lunch."
Harriet looked aghast.  "Now!" she exclaimed.  "Beryl can tell you that I never eat at night. . ."
Or if you like a good menacing passage about corn on the cob:
Sadie bent down to adjust her cotton stockings, which were wrinkling badly at the ankles, and when she straightened up again her eyes lighted on three men dining very near the edge of the terrace; she had not noticed them before.  They were all eating corn on the cob and big round hamburger sandwiches in absolute silence.  To protect their clothing from spattering kernels, they had converted their napkins into bibs. 
. . .
"I don't like men," Sadie announced without venom, and she was about to follow Harriet when her attention was arrested by the eyes of the man nearest her.  Slowly lowering his corn cob to his plate, he stared across at her, his mouth twisted into a bitter smile.  She stood as if rooted to the ground, and under his steady gaze all her newborn joy rapidly drained away.
Or if you're in the market for something really tragic:
She was suffering as much as she had ever suffered before, because she was going to do what she wanted to do.  But it would not make her happy.  She did not have the courage to stop from doing what she wanted to do.  She knew that it would not make her happy, because only the dreams of crazy people come true.  She thought that she was only interested in duplicating a dream, but in doing so she necessarily became the complete victim of a nightmare 
3.  Re-reading (if first reading, start with this before Bowles) Henry James's The Golden Bowl, particularly the part where Maggie sees her husband playing cards with her father, who's married to her husband's lover, and realizes that "the full significance" of their interaction "could be no more, after all, than a matter of interpretation, differing always for a different interpreter," and realizing that so too the meaning of an ambiguous organic statute can be no more than a matter of interpretation, differing always for a different interpreter.

4. Re-reading (or first reading) Henry James's "The Jolly Corner," especially the first sentence where Brydon complains that everyone asks him what he "thinks" of everything, and remarking that even if he could answer, "my 'thoughts' would still be almost altogether about something that concerns only myself," and recognizing that this passage neatly doubles as a description of the station of the federal judge pre-Chevron.  (But have no fear, corpus linguistics will save us!) 

5.  Spending a diverting afternoon noodling around with a linguistic corpus and learning fun things about contemporary usage while discovering that corpora don't actually tell you much about what words in a statute mean, just mostly irrelevant at best (and highly misleading at worst) usage patterns.  Feeling grateful that not enough people actually use linguistic corpora yet for your test-drive to have cost you anything.

6.  Taking the multi-jurisdictional surveys of how the fifty states define "sexual abuse" in Esquivel-Quintana, neatly folding them into paper planes, and tossing them around Central Park or the National Mall on a sunny spring day. 

7.  Giving an ant or worm a gentle ride on one of the paper planes and arguing with your non-lawyer friends over whether the planes have become vehicles in the park.

8.  Thinking about how awesome it is that the Board of Immigration Appeals gives everyone fair notice of which offenses are deemed aggravated felonies for deportation purposes and collateral criminal purposes by announcing nationally uniform definitions of the aggravated felonies in published opinions and posting those opinions on the DOJ website, complete with super-clear, super-short headnotes at the top of their opinions that they write themselves.  Wishing that figuring out what terms in criminal statutes meant (or parsing Supreme Court opinions) were always so easy.  Getting so frustrated that this is somehow viewed as a notice problem that you get distracted from and have to reheat your dinner several times.

9.  Watching the ending of Au hasard Balthazar (AKA, "the world in an hour and a half") in an attempt to convince yourself that there are sadder things in life than Chevron being overruled; getting really depressed from watching it but failing to convince yourself that even the ending of Au hasard Balthazar is sadder than Chevron being overruled on account of Balthazar's at least getting to die while being surrounded by a lot of cute sheep.  Realizing that when Chevron is overruled, there will be no cute sheep, only judges striking down the USDA's already toothless Animal Welfare Act regulations and immiserating cute sheep, ligers, and other kindly animals everywhere.

10.  "Operating" a trailer in subzero weather by driving away from it as fast as possible. Very "unpleasant," but not so unpleasant as . . .

11.  Listening to "Kelly Clarkson, Sara Bareilles, Taylor Swift, Adele, OneRepublic, Bruno Mars, etc." and still somehow maintaining the intellectual heft and grace to write a line like "the interpretation of an ambiguous statute is an exercise in policy formulation rather than in reading."

Wednesday, March 22, 2017

I Guess I Tweet Now; Unrelatedly, Peek Away, but at What?

at @AsherLSteinberg.  I will work on replacing the egg icon with an appropriate picture of myself/my dog/a Chevron gas station (the slashes represent "or," not "and," unlike the slash in Judge Gorsuch's cryptic holding that an agency's "Chevron step two/Brand X adjudication" can't apply retroactively, which I think is intended to mean "and," though I've read the opinion two dozen times and still can't say for certain).

A thought I didn't want to write a separate post on, but have now in spite of myself.  I agree that it's appropriate, in reviewing Trump's EO, to "peek" at his "Muslim ban" proposal, as the latter is obviously at least a meaningful part of the legislative history, so to speak, of the former.  We can debate how much the motives animating that proposal have or haven't been cleansed by the new one - I think there's a respectable argument that they have - but it's silly to suggest the Muslim ban is inadmissible stump chatter.

What I don't understand, however, is the blithe assumption that the Muslim ban proposal is evidence of animus or a non-secular purpose.  I find Trump's actual motives fairly transparent.  Judging by the same remarks on which people rely to find animus, those motives consist, I think, of a desire to reduce the risk of "radical Islamic terrorism" from foreign Islamic terrorists (which all sorts of pre-Trump, post-9/11 domestic or foreign policies, including at least two wars, were created to specifically address) -- coupled with a possibly empirically false but not bigoted or utterly unreasonable premise that it's difficult and maybe impossible to tell for certain if any given Islamic immigrant is or isn't a would-be religiously motivated terrorist, given that persons who come to America to do us harm aren't likely to volunteer that information and are likely to do whatever they can to conceal evidence of their intentions.  It may well be impossible for a Syrian refugee to conceal residency in an ISIS camp, or jihadist social-media activity, but I think it takes some pretty motivated reasoning to conclude it's impossible for someone to become radicalized - which is just to say, to become an individual with a certain set of radical beliefs - without leaving some tangible trace of their radicalization, or tipping off immigration officials in interviews.  

Furthermore, I suspect, though I can't tell this from anything Trump has said, that Trump has somewhat exaggerated notions of how many Muslims around the world are radicalized in the relevant respect, but I don't see how those arguable mistakes of fact constitute animus, and I'm reasonably confident, given the unfiltered things Trump has said on the subject over the past two years, that he doesn't believe that all or most or anything like most Muslims are would-be terrorists.  I would agree that Trump's past and present proposals are vastly disproportionate to the risks that Muslim immigrants present and that less inhumane policies can do a near-perfect job of avoiding those risks, but disproportionality, though it can be evidence of an ulterior motive/animus, isn't proof of animus.  And I don't see that the belief, even if false (though I don't think it is), that a religion has some meaningful number of adherents who, on the basis of their religious beliefs, seek to do us terroristic harm, and that it is hard to perfectly suss out which adherents those are, comes anywhere close to being a form of animus or bigotry.

Then there's the question of secular/religious purpose, and here too I'm confused.  Trump's Muslim ban did not have the goal of establishing some set of favored religions, or disfavoring Islam as a matter of domestic policy; nor is it based on some theological objection to Islam as such.  Rather, the purpose of the Muslim ban was to reduce the risk of terrorism in this country; the reason Muslims were targeted is that terrorists in America or Europe (excluding white nationalist ones born and raised in the countries where they commit terrorist acts) tend, in Trump's view, to disproportionately be Muslims.  Where is the religious purpose in that?  If any facially religious classification has a religious purpose and is therefore per se invalid under Lemon, what use is the doctrine that says religious classifications and laws that target religion are subject to strict scrutiny?  When would that doctrine ever get any play?  

Suppose, e.g., a religion practices dog sacrifice and its members are banned from immigrating to this country; would such a ban have a religious purpose, or the purpose of saving canine life from sacrifice?  I think it only would have a religious purpose if dog sacrifice were being banned for religious reasons, e.g. dog-worship (like India's treatment of cows, which has a legal dimension that would almost certainly violate our Establishment Clause).  Even assume dog sacrifice's role in the religion is disputed among its members, and only a very small number of radical members practice dog sacrifice in large volume; we could argue about tailoring, we should possibly apply strict scrutiny depending on how one reads cases like Kleindienst v. Mandel, but would a ban on immigration by members of that religion have a religious purpose?  Did the Lautenberg Amendment's preferences for Soviet Jewish refugees have a religious purpose, or the purpose of protecting a persecuted group that happened to be defined by their persecutors in religious terms?  Did the religion-targeting ban of animal sacrifice in Lukumi Babalu Aye have a religious purpose, or an animal-cruelty purpose such that it was only subject to strict scrutiny, rather than per se invalidation?  It strikes me that the district courts that have invalidated Trump's order on Establishment Clause grounds, and the people defending them, are assuming that all facial or masked religious discrimination is motivated by a religious purpose by definition and per se invalid -- but that can't, I don't think, be right.

Yes, Gorsuch Matters II (or, Why an Unreliable Vote for Chevron is a Vote Against Chevron)

In my last post, I argued that Gorsuch matters because there are undeniably four votes on the Court, not counting would-be Chevron overrulers, to make Chevron a permissive deference regime - i.e., one where judges decide, as to any particular notice-and-comment rule or formal adjudication interpreting an ambiguous statute, whether Congress really meant to delegate interpretive authority on the ambiguity at issue.  I surmised that Gorsuch would be the fifth, and that that might very well spell the end of Chevron.  What would be left of it would be a zombie "Chevron" where judges would be free to decline to apply it for self-serving reasons, i.e., wishing to arrogate themselves the power to decide a particular question, or opt to apply it for self-serving reasons, i.e., not having much interest in doing the legwork of deciding a particularly technical question.  And whatever the Court might itself do in particular cases, zombie Chevron would free lower courts to do whatever they wanted to do.

Since that post, I've seen arguments that Gorsuch wouldn't change the Court's deference balance much because there aren't five votes against Chevron - Breyer "loves" agencies, Kennedy isn't a "reliable" vote against Chevron, and Alito doesn't have strong views (but see his recent remarks at the Claremont Institute). Unfortunately, this misses the point entirely.  Deference some of the time to the agencies one loves or begrudgingly tolerates amounts to Chevron none of the time, because Chevron just is the rule that if an agency construes an ambiguous statute by a sufficiently formal means, it's getting deference to its reasonable interpretation.  Nor is this a merely semantic point about what "Chevron" means, because besides the consequences of the Court's denying deference to the agencies it doesn't love in a few big cases, the consequences of freeing the D.C. Circuit and the other lower courts to withhold deference from the agencies they don't love, or don't think are up to the task of resolving certain questions, would be massive.

I have been fortunate enough to live my whole life under a mandatory deference doctrine, but some people reading this blog may be old enough to remember what times were like before Chevron, or curious enough to look a bit beyond Skidmore, which the Court likes to talk about now as the primary alternate deference regime but which wasn't, in pre-Chevron years, the watchword it's since become.  For those of you who don't know what pre-Chevron deference doctrine was like, this, as best as I can understand it, is how it worked.  

Contrary to popular belief, there was lots of deference to agency interpretation before Chevron; there just wasn't any rule about when agencies got it.  In 1985, a year after Chevron was decided and before its importance became apparent, Colin Diver wrote an article in the Penn Law Review entitled "Statutory Interpretation in the Administrative State."  One footnote in that very fine article has probably been cited more than everything else in it combined; that footnote helpfully cobbled together a "partial list" of ten factors the Court had considered in the prior fifty years when deciding "whether to grant deference."  The factors included agency expertise, longstanding application of an agency's interpretation, agency consistency, importance of the statutory question, contemporaneity of the agency interpretation with the statute's enactment, congressional awareness of the interpretation, and many more.  (If these factors sound vaguely familiar to you, there's a reason; at least one member of the Court still believes they're controlling.)  Unsurprisingly, Diver found no consistency in how the Court applied these factors.

Diver was not alone in finding pre-Chevron deference doctrine a mess.  Judge Henry Friendly, probably the greatest doctrinalist judge of the twentieth century, couldn't understand the Court's deference doctrine.  Concurring with the leading administrative-law scholar of his day, Judge Friendly wrote in 1976 that "[w]e think it is time to recognize, in line with Professor Kenneth Culp Davis' brilliant discussion . . . that there are two lines of Supreme Court decisions on this subject which are analytically in conflict, with the result that a court of appeals must choose the one it deems more appropriate for the case at hand."  Friendly found numerous cases that called for "great deference," but also found "an impressive body of law sanctioning free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term," and couldn't figure out a discernible rule distinguishing the two.  

The incoherence of the Court's pre-Chevron deference doctrine was unavoidable.  A doctrine under which courts sought to decide on a provision-by-provision basis whether Congress intended for deference to agencies couldn't help but be arbitrary and unpredictable, as there simply is no judicially discoverable evidence of whether Congress intended agencies to receive deference on one provision or another.  Congress certainly doesn't say or hint at its intentions on the matter, and what remains is guesswork about intentions that don't exist (and arguably wouldn't matter if they existed anyway), or, more realistically, judicial preferences masked as intentionalist guesswork.

When Chevron was decided in 1984, Justice Scalia, Judge Gorsuch's would-be predecessor, hailed it in his inimitable way as replacing "statute-by-statute evaluation (which was surely a font of uncertainty and litigation) with an across-the-board presumption that, in the case of ambiguity, agency discretion is meant."  He acknowledged, of course, that Congress probably doesn't intend for agency discretion in all cases of ambiguity, or even "think about the matter at all," but argued that Congress's inattention to the matter was all the more reason for a fictitious across-the-board presumption rather than a "wild goose chase" for "the 'genuine' legislative intent" on deference.  And he suggested that Chevron's presumption was more likely accurate than a doctrine under which Congress was essentially presumed to have left all the questions courts were particularly interested in deciding to courts.

Of course, Chevron wasn't universally embraced; some judges lamented Chevron's abandonment of the old multi-factor doctrine.  Chief among these was future Justice Breyer, who in 1986 wrote an article in the Administrative Law Review where he argued that judges should still be in the business of deciding whether Congress delegated an agency the power to "decide the relevant question of law," and should consider, in making that decision: (a) expertise, (b) interstitiality vs. importance, (c) generally ask whether the court or agency was more likely to get the question right, (d) consider linguistic imprecision, (e) "the extent to which the answer to the legal question will clarify, illuminate or stabilize a broad area of the law," (f) whether the court "trusted" the agency or not (!!), and (g), "of course," "any tangible evidence of congressional intent," including, for example, legislative history.  Justice Breyer vehemently protested, in his mild-mannered way, any reading of Chevron that would abrogate this fine-tuned approach.

Then-Judge Breyer initially lost the judicial debate with his peers on the D.C. Circuit, and ultimately with the Supreme Court, over how to read Chevron.  But he never gave up.  In 2002, after the Court held in Mead that rules issued outside of notice-and-comment weren't automatically entitled to Chevron deference, unlike notice-and-comment rules, which were, Justice Breyer wrote for the Court that his set of factors controlled whether a non-notice-and-comment rule got Chevron deference.  A mere interpretive rule, he held, could receive deference if it concerned an interstitial question, the issuing agency had expertise, the question was important to the administration of the statute, the statute complex, and the agency's interpretation longstanding.  

None of this mattered much because agencies could always get Chevron deference without muddling through Justice Breyer's multi-factor morass so long as they went through notice-and-comment or decided matters by formal adjudication.  But despite his love for agencies (at least twice a term, Justice Breyer will bring up "the Federal Power Commission of blessed memory" at oral argument), Justice Breyer has never quit suggesting that there really are no safe harbors under Mead for notice-and-comment rulemaking or formal adjudication, and that his factors ought to apply whenever a court decides whether to turn Chevron on or off.  Meanwhile, three more Justices - the Chief, Kennedy, and Alito - have recently joined an opinion that claims that even when agencies issue notice-and-comment rules, courts still must decide whether to apply Chevron "specific statutory ambiguity" by specific statutory ambiguity, with no guidance whatsoever on how to do it; that opinion's author subsequently wrote an opinion carving out an exception to Chevron for questions of "deep economic and political significance" (arguably an apt way to decide the question in Chevron itself, or, e.g., the Chevron-deferred-to Reagan administration's ban on federal funding for abortion counseling in Rust v. Sullivan), with no guidance whatsoever on what a question of deep economic and political significance looks like.

In sum, Breyer, Kennedy, Alito, and even the Chief Justice may not be "reliable" votes against deference.  No one really is; all judges since the New Deal have deferred to agencies in some cases.  Justice Breyer, until recently the Court's most vehement opponent of Chevron as doctrine, likes deferring to agencies a lot.  What they undeniably are, though, is reliable votes for the principle that deference to formal agency interpretations of ambiguous statutes isn't  mandatory, as Chevron held it was, but instead should be meted out case by case, statute by statute, ambiguity by ambiguity.  That is precisely the state of affairs that Chevron replaced, and I strongly suspect that Judge Gorsuch would join them in taking us back there.

Tuesday, March 14, 2017

Yes, Gorsuch Matters

In a post on his blog, Eric Posner asks whether Gorsuch matters for administrative law.  The argument goes that while Gorsuch, a critic of Chevron deference, would be replacing Scalia, the Court's leading defender of Chevron deference, and joining Justice Thomas as perhaps the only other member of the Court that would like to overrule Chevron outright, data shows that Scalia and Thomas actually voted almost exactly the same way in administrative-law cases, perhaps because Scalia, while touting deference in theory, avoided deferring to "liberal" regulations by declining to find statutory ambiguity where less conservatively motivated Justices would.  It follows, Posner reasons, that if Gorsuch turns out to be "a clone of Thomas" in administrative-law cases, he'll be "a clone of Scalia" in administrative-law cases too.  I think this argument is completely wrong for a few reasons, and that Gorsuch's confirmation will very possibly be the undoing of deference doctrine as we know it.

Gorsuch Could Change Deference Doctrine in Lower Courts

First, assuming the argument works as far as it goes, i.e., that Gorsuch's confirmation will not result in materially different bottom-line results in administrative-law cases at the Supreme Court from what obtained before Scalia's death, it's almost entirely besides the point because bottom-line results in the handful of administrative-law cases the Supreme Court hears is not what "matters" for these purposes, or at least not what matters most.  What "matters," it seems to me, is whether, as a general matter, the federal system as a whole will become one in which courts decide (or at least more frequently decide) the meaning of ambiguous statutes that agencies administer, or continue to be one where agencies usually decide, subject to reasonableness review, the meaning of ambiguous statutes that Congress asked them to administer.  

It may be that what the Court has to say doctrinally on that score has never had overwhelming influence on how the Court actually decided the small set of difficult and often highly politically charged administrative-law cases that come to it; that was very possibly true, at least, of Scalia.  But all evidence suggests that what the Court has to say about deference doctrine has great influence on whether the lower courts defer to agencies in practice.  Lower courts, a recent comprehensive study shows, are much more likely to rule for and defer to agencies when applying the Court's Chevron deference rule than a softer deference standard like Skidmore, and vastly more likely to rule for agencies when applying Chevron than when they apply no deference standard at all.  Were the Court to hold that Chevron deference is not applicable in some large class of cases where it currently is, or to overrule Chevron altogether, results in lower courts would be quite different.  On the great many statutory questions on which agencies regulate that Congress has not clearly addressed and the Supreme Court does not grant certiorari to decide, the law would meaningfully more often be court-made law than agency-made law.  That seems like a big deal.  (I quite appreciate that "court-made law" is a tendentious formulation and that Judge Gorsuch and others would claim that overruling Chevron would replace agency-made law with the law Congress actually made, as divined, imperfectly but fairly accurately, by courts.  For reasons I'll address in a posting next week, I find this a deeply implausible view of the world.)

Now, it is happily or unhappily the case that if confirmed, a Justice Gorsuch would only be the second member of the Court to even express interest in overruling Chevron.  But by my count, he will likely be the fifth or sixth Justice open to a narrowing of Chevron that would be tantamount to overruling it in all but name.  In City of Arlington v. FCC four years ago, just five Justices, including Justice Thomas, joined an opinion of the Court authored by Scalia stating the once-uncontroversial view that if an agency with general rulemaking or adjudicatory power under a statute announces a reasonable interpretation of an ambiguity in that statute in a notice-and-comment rulemaking or formal adjudication, it is entitled to Chevron deference, period--regardless of whether the question it is deciding can be characterized as whether or not it has the power to regulate on some substantive question in the first place. The other four members of the Court had other ideas.

Justice Breyer, consistently with opinions and writings of his going back decades, could only concur in the judgment, opining that an agency is entitled to Chevron deference only when ten or so factors lead him to believe that Congress would have wanted the agency to receive deference on the particular question at issue.  In dissent, the Chief Justice, writing for himself, Alito, and Kennedy, complained that an agency can't receive deference on whether or not it is entitled to deference, and that to say an agency is entitled to deference on whether or not it is entitled to regulate on some substantive issue is to say precisely that, given that if it can regulate on the issue, it will be entitled to deference.  That sounds reasonable enough, but as the argument reveals itself, it turns out that Roberts isn't only arguing that agencies cannot receive deference on whether some subject matter is within their regulatory "jurisdiction," but also that the question of whether an agency has been delegated "interpretive authority" on any given ambiguity within its organic statute must be decided "specific statutory ambiguity" by specific statutory ambiguity, by "simply apply[ing] the normal rules of statutory construction."  How the normal rules of statutory construction (as opposed to some abnormal set of antediluvian hyper-purposivist rules) are to shed light on whether a statute that by its terms gives an agency general rulemaking authority to carry out all its provisions "really" gave the agency interpretive authority on any one of those provisions is not explained and unfortunately never illustrated on the facts of the case, as Roberts would, oddly, have remanded to the court below to let it decide in the first instance whether Congress truly "delegated interpretive authority" over the provision of the Telecommunications Act at issue to the FCC.

Jibes aside, the underappreciated upshot of City of Arlington is that even before Justice Thomas began to opine that Chevron was unconstitutional, four Justices who still are on the Court today were of the view that Chevron deference did not apply to all ambiguities in an agency's organic statute, so long as the agency addressed them in a sufficiently formal way, but rather only applied where a court determined that Congress really meant for the agency to have "interpretive authority" on a given ambiguity.  While that approach would lead to deference some of the time--realistically speaking, in cases presenting issues that courts didn't care about enough, or disagree with the agency enough about, or want to exert the effort, to decide themselves--it has nothing to do with Chevron as the lower courts understand it.  Rather, without coming out and saying so, it would amount to a reincarnation of the confused, permissive pre-Chevron deference doctrine that Chevron replaced.

It's hard to say whether, failing overruling Chevron in so many words, Justice Thomas would have any interest in cutting back on deference by joining these four Justices in licensing lower courts to engage in delegation mind-reading.  I am inclined to believe that Justice Thomas is too principled, too discomfited by contentless standards, far too disinterested in guessing at what was in Congress's heads or attributing intentions to Congress that it lacks, and, at least in the past, too smart an expositor of a truly rule-like Chevron doctrine to go in for it.  It is, of course, possible that Justice Thomas may simply vote to overrule Chevron in every Chevron case, in the same way that Justices in the 80s who lacked a majority to invalidate the death penalty would nevertheless vote their precedentially foreclosed views in death cases.  Were Justice Thomas willing to vote in that way, which I think is possible and not without precedent in his career, Gorsuch wouldn't need to join the Court for the Breyer/Roberts reading of Chevron to become law; they could make it the law by plurality, with Thomas concurring on broader grounds.  Query, however, whether all five of the Justices it would take to effectively restore pre-Chevron deference doctrine in this fashion would be inclined to so fundamentally change the law by way of a Marks holding, or whether such a holding would be stable or bind the Court.

Gorsuch, it seems to me, is the answer to the Breyer/Roberts coalition's problems; he would almost certainly give them the needed fifth vote to narrow Chevron.  Why do I assume Gorsuch wouldn't be just as principled a coherentist about deference as Thomas?  Because, in the past, he hasn't been.  In his famous concurring opinion in Gutierrez-Brizuela, Gorsuch boasted that in his opinion for the panel and another opinion before that, he had "sought to tame some of Brand X's more exuberant consequences"--yes, that's a lower-court judge talking about "taming" a Supreme Court precedent that's only 11 years old--by holding that in the future when his court gave Chevron deference to an agency interpretation and overruled contrary circuit precedent under Brand X, it would never apply its decision retroactively to the parties before it, thereby turning future Brand X cases in his circuit into bizarre exercises in advisory opinion-giving.  Gorsuch would defend this advisory approach to Brand X by likening it to qualified-immunity cases that announce a new constitutional rule without sanctioning the defendant that violated it.  In qualified-immunity cases, though, plaintiffs attempt to show that their rights were clearly violated under existing law and that the rule of constitutional law they claim the defendant violated should apply in their cases; in Gorsuch's version of Brand X, the parties to a case implicating Brand X would always know that nothing they argued could possibly affect the court's ultimate judgment.  Whatever the court said about its precedent going forward, it would always apply its old rule to the parties before it.  (It's true that some parties would be repeat players and care about prospective application, but, to give just one common example, individual immigrants would not be and thus would have no reason to argue about whether an agency interpretation that couldn't possibly affect them was owed deference.)  I'll say more about Gorsuch and deference in subsequent posts, but for now suffice it to say that he has no problem with making an incoherent mess of deference doctrines he doesn't like so long as doing so cuts back on deference.

Gorsuch Would Change Outcomes in Big-Ticket Supreme Court Cases

On the merits of Posner's actual argument--namely, that whatever Gorsuch might do to doctrine, he wouldn't change the results of the Court's administrative-law cases too much--Posner's inference from data that Scalia and Thomas voted roughly the same way in administrative-law cases goes astray in a couple respects.  The first is that Justice Thomas only became anti-Chevron Thomas on the last day of the 2014-15 term (though he hinted at his direction a few months prior).  Prior to that, while Justice Thomas did not, like Scalia, eccentrically urge Chevron deference to opinion letters, amicus briefs, and other forms of guidance that no one else on the Court deferred to, he was about as staunch an advocate of mainstream Chevron doctrine as there was.  The most noteworthy example, of course, was his 2005 opinion in Brand X holding that the lower courts, if not the Supreme Court, are obliged to overrule their precedent on ambiguous statutes when an agency subsequently offers a contrary reasonable interpretation; a more quiet example is his joining Scalia's opinion in City of Arlington.  The data set Posner borrows is from 2005-15, during which time Thomas and Scalia not only agreed on politics and statutory interpretation, but deference as well.  So to point to Thomas's 2005-15 votes as indicia of where opposition to Chevron would lead Gorsuch, or as evidence that theoretical disagreement between Thomas and Scalia on Chevron made no difference in terms of the real degree of deference they gave agencies, doesn't work, not only because it assumes all sorts of things that may or may not be the case, but because Thomas's 2005-15 votes were not the votes of a Chevron opponent.

Second, Posner's data does show that, in 31% of the agency cases involving "liberal" agency decisions that were hard enough and important enough for the Court to grant cert, Scalia voted for the agency, while Thomas voted to uphold liberal agency decisions 26% of the time.  (Similarly, it shows that Kagan, Ginsburg, Breyer and Sotomayor have voted to uphold conservative agency decisions 33, 34, 36 and 40% of the time respectively.)  Posner says this is evidence of Scalia refusing to defer to liberal agencies in practice, whatever he said about Chevron in theory.  31% isn't great, but, with the possible exception of the criminal defense bar, I would be surprised to learn of some liberal interest group other than liberal regulators that Scalia voted for 31% of the time, or that Thomas voted for 26% of the time.  And I would be fairly surprised if absent a meaningful deference doctrine liberal regulators could even claim a 31% win rate before Scalia or a 26% win rate before Thomas, or whether conservative regulators could claim win rates of 33 to 40% before Sotomayor, Ginsburg, Kagan and Breyer.  Narrowing Chevron to oblivion could make all members of the Court a lot more predictable and ensure that whichever party was in the majority on the Court at any given time won the bulk of agency cases.