Two on Chevron
- Mark J. Richards , Joseph L. Smith and Herbert M. Kritzer (Grand Valley State University – Department of Political Science , Grand Valley State University – Department of Political Science and University of Wisconsin – Madison – Department of Political Science) have posted Does Chevron Matter? (Law and Policy, Vol 28, No. 4, October 2006) on SSRN. Here is the abstract:
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In this article we evaluate whether the Supreme Court’s much-discussed decision in Chevron v. Natural Resources Defense Council (1984) signaled a lasting difference in how the justices decide administrative law cases by comparing and testing the predictions of three distinct theories of Supreme Court behavior. The legal model predicts an increase in deference to administrative agencies. This prediction is shared by the jurisprudential regime model, which also predicts that the justices evaluate key case factors differently before and after Chevron. The attitudinal model predicts no change in the justices’ behavior as a result of Chevron. We find support for the all three models, although the fact that the legal and jurisprudential regime models are supported undermines the assertion of the attitudinal model that law cannot explain Supreme Court votes on the merits.
Cass R. Sunstein and Thomas J. Miles (University of Chicago – Law School and University of Chicago – Law School) have posted Do Judges Make Regulatory Policy? An Empirical Investigation of ‘Chevron’ (University of Chicago Law Review, Vol. 73, Summer 2006). Here is the abstract:
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In the last quarter-century, the Supreme Court has legitimated agency authority to interpret regulatory legislation, above all in Chevron U.S.A., Inc v Natural Resources Defense Council, Inc, the most-cited case in modern public law. Chevron recognizes that the resolution of statutory ambiguities often requires judgments of policy; its call for judicial deference to reasonable inter-pretations was widely expected to have eliminated the role of policy judgments in judicial review of agency interpretations of law. But this expectation has not been realized. On the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices. Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern.
Similar patterns can be found on federal appellate courts. In lower court decisions involving the EPA and the NLRB from 1990 to 2004, Republican appointees demonstrated a greater willingness to invalidate liberal agency decisions and those of Democratic administrations. These differences are greatly amplified when Republican appointees sit with two Republican appointees and when Democratic appointees sit with two Democratic appointees.