Judicial Review of Administrative Agencies: Does the Type of Agency Matter?

• Author: Donald W. Crowley
• Published date: 01 June 1987
• Date: 01 June 1987
• DOI: http://doi.org/10.1177/106591298704000205
• Subject Matter: Articles

JUDICIAL REVIEW OF ADMINISTRATIVE
AGENCIES: DOES THE TYPE OF
AGENCY MATTER?
DONALD W. CROWLEY
University of Idaho
N
EXAMINING
the topic of the Supreme Court’s review of adminis-
~ trative agencies two broad perspectives can be identified. One perspec-
tive, the legal model, suggests that the Court is primarily concerned
with an agency’s adherence to procedural rules rather than the substan-
tive policies produced by the agency. This view emphasizes the Court’s
search for neutral standards of review and speaks in terms of the degree
of deference owed the agency, the extent to which the agency’s actions com-
port with congressional intent, and whether an agency’s findings are based
on substantial evidence or could be said to be arbitrary and capricious (Davis
1977).
The second perspective, most frequently associated with the schools of
political jurisprudence and legal realism, emphasizes the extent to which
such determinations are affected by the Court’s attitude toward the agency’s
s
policy decisions. Although the concepts of procedure and policy are not
always easily separated, the political jurisprudence perspective stresses the
Court’s concern with the policy direction of the agency, not simply whether
it made its decisions in a procedurally correct manner (Shapiro 1964).
Adherents of political jurisprudence have employed a variety of ap-
proaches in seeking to explain judicial behavior with respect to agencies.
For instance, some political scientists have adopted a case study methodol-
ogy and stressed the political context within which the Court and agency,
acting as supplementary lawmakers, have sought to shape substantive policy
(Shapiro 1968; Fiorino 1976; Crowley 1985). Other scholars, employing
aggregate data, have investigated the overall level of Court support for ad-
ministrative agencies and the degree to which variations in support for in-
dividual agencies can be attributed to disagreements on questions of policy
(Pritchett 1948; Tanenhaus 1960; Canon and Giles 1972; Handberg 1979).
Those who have relied on aggregate data have inevitably found that
the level of Court support varies from agency to agency, but there has not
been a systematic investigation of whether the level of Court support de-
pends upon the type of regulatory agency before the Court. The failure
to do so may reflect the fact that no single typology of regulatory agencies
has received widespread acceptance. Nevertheless, in recent years several
scholars have noted that &dquo;new style&dquo; social agencies differ in important
ways from &dquo;old style&dquo; economic agencies. If noticeably different interests
Received: January 9, 1986
1st Revision Received: May 28, 1986
2nd Revision Received: June 30, 1986
Accepted for Publication: July 10, 1986

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266
and conceptions of the role of government are at stake in cases involving
these two types of agencies, then it seems plausible that such interests might
be reflected in different patterns of Court support.
In order to test this proposition, this study will employ aggregate data
to analyze the Burger Court’s treatment of cases dealing with social and
economic agencies in the years between 1976 and 1983. The paper seeks
to determine whether the interests affected by the regulation influences the
Supreme Court’s willingness to confirm or reject agency decisions. The
analysis will be organized around four interrelated questions. First, to what
extent does the Court’s support rate for social agencies differ from its sup-
port rate for economic agencies? Second, does the willingness of justices
to defer to agency decision making depend on the ideological direction of
the agency decision? If so, will those justices who have high rates of sup-
port for particular agencies alter this support when the direction of agency
decision making changes? Finally, will the conflict between justices on the
Court be higher in cases involving social agencies?
AGENCIES BEFORE THE COURT: A REVIEW
Since the decline of the non-delegation doctrine in the 1930s adminis-
trative agencies have generally been supported by the Court. In one of the
first studies of this type, C. H. Pritchett reported that between 1941 and
1946 the Supreme Court supported the eight agencies he surveyed 72 per-
cent of the time (1948: 190). Slightly more than a decade later Joseph Tanen-
haus studied Court reviews of decisions of 10 agencies for the period between
1947 and 1956 and found the Court support rate to be 60 percent (1960:
514). Bradley Canon and Michael Giles analyzed Court cases reviewing
six agencies for the period between 1957 and 1968 and found the Court
in agreement with the agency 74 percent of the time (1972: 184). More
recently, Roger Handberg updated the Canon and Giles study through 1974
and discovered that the Burger Court continued to support these same six
agencies at the rate of 65 percent (1979: 168-69).1
Taken as a whole, the above studies suggest that since 1941 the Court
has supported the position taken by administrative agencies about 70 per-
cent of the time (Handberg 1979: 167). This deference to an agency’s view-
point can be explained in various ways. Clearly agencies possess certain
practical advantages when they appear before the Court: they are repeat
players with an established record of litigation (Galanter 1974); they usually
possess the support of the Solicitor General; and they frequently can lay
claim to a degree of issue expertise which may make justices reluctant to
substitute their judgment for that of the agency (Stewart 1979). Indeed,
the latter point is formally buttressed by the Administrative Procedure Act
and internal Court norms which suggest that &dquo;due deference is to be ren-
1
These numbers are derived from Hanberg. He actually computed Court support scores
for a much broader range of agencies and found that the Court supported agencies 72.7
percent of the time between 1965 and 1976.

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267
dered to agency determinations of fact, so long as there is substantial evi-
dence to be found in the record as a whole. &dquo;2
2
However, focusing on the overall success rate of agencies tends to mask
the fact that the Court is not uniformly deferential and shows substantial
variation in support from agency to agency. For instance, in Pritchett’s
original study the National Labor Relations Board succeeded 86 percent
of the time while the Federal Communications Commission was successful
only 38 percent of the time (1948: 190). The Canon and Giles study recorded
over 90 percent success rates for the Federal Power Commission and the
Federal Trade Commission while the Immigration and Naturalization Serv-
ice won barely half the time. Such variations have not really been adequately
explained by the literature. While the legal model would tend to see such
discrepancies as a function of the procedures followed by the respective agen-
cies, the research by Canon and Giles rejected this view and concluded
that differences in &dquo;the Court’s willingness to support an agency as a recur-
ring litigant stems largely from the justices’ attitudes toward the agency’s
substantive policies rather than its procedural behavior&dquo; (1972: 190). From
this perspective, the Court’s widespread deference to agency decision making
in the postwar period would appear to be more a function of basic agree-
ment with the policy output of most administrative agencies than adher-
ence to any norm of judicial restraint (Spaeth and Teger 1982).~
If attitudes toward policy goals are the basic motivating factor behind
the Court’s willingness to uphold or reject agency decisions, then there is
good reason to suspect that in the late 1970s an increasingly conservative
Court might begin to conflict with the policies of some agencies. Since Canon
and Giles completed their study six new members have joined the Court.
Several of these justices were appointed specifically because their conser-
vative credentials promised a reconsideration of Warren Court tendencies.
To what extent would their more conservative policy preferences show up
in their attitudes toward the work of administrative agencies? If the new
justices were appointed for their opposition to judicial activism then one
might expect even greater levels of support for agencies.4 If, however, the
concept of deference is largely a cover for policy preferences, then we should
expect some of the new justices to be activist with respect to certain agen-
cies (Spaeth and Teger 1982).
2

See National Labor Relations Board v. Brown, 380 U.S. 278 (1965), at 290. The term "sub-
stantial evidence" is of course a tricky one. It is not difficult to find many examples
of cases where the Court has reversed the agency’s findings of fact because in the Court’s
view the record was not adequate.
3

The term judicial restraint can be illusive. Here and throughout the article I am using
the term to refer to situations when a justice defers to the decisions of another branch
of government, in this case administrative agencies. Bradley Canon (1982) has pointed
out that there are at least six dimensions of the activist-restraint debate, some of which
are in conflict with each other. Thus, a justice might appear activist on one dimension
and restrained on another.
4
Although this is a popular mythology, there is little reason to believe that Nixon’s appoint-
ments were made to stop judicial activism. For the most part they have simply been
activist in a different direction.

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The rise of a new type of regulatory agency would seem to provide an...