The Politics of Selecting Chevron Deference

• Author: Christopher J. Walker,Christina L. Boyd,Kent Barnett
• Published date: 01 September 2018
• DOI: http://doi.org/10.1111/jels.12187
• Date: 01 September 2018

Journal of Empirical Legal Studies

Volume 15, Issue 3, 597–619, September 2018

The Politics of Selecting Chevron Deference

Kent Barnett, Christina L. Boyd, and Christopher J. Walker*

In this article, we examine an important threshold question in judicial behavior and

administrative law: When do federal circuit courts decide to use the Chevron deference

framework and when do they select a framework that is less deferential to the administra-

tive agency’s statutory interpretation? The question is important because the purpose of

Chevron deference is to give agencies—not judges—policy-making space within statutory

interpretation. We expect, nonetheless, that whether to invoke the Chevron framework is

largely driven by political dynamics, with judges adopting a less deferential standard when

their political preferences do not align with the agency’s decision. To provide insight, we

analyze circuit court decisions from 2003 until 2013 that review agency statutory interpreta-

tions. Our results—from the largest and most comprehensive database of its kind—

provide partial confirmation of our expectations. When courts reviewed liberal agency

interpretations, all panels—liberal, moderate, and conservative—were equally likely to

apply Chevron. However, when reviewing conservative agency interpretations, liberal panels

selected the Chevron deference framework significantly less frequently than conservative

panels. Contrary to limited prior studies, we find no evidence of “whistleblower” or

disciplining effects when judges of different judicial ideologies comprised the panel.

Viewed together, our results provide important implications for the current debate on

whether to eliminate, narrow, or clarify Chevron’s domain.

I. INTRODUCTION

In recent years there has been a growing call in Congress, in the legal academy, and on

the federal bench—largely from those right of center—to eliminate longstanding judicial

deference doctrines to federal agency interpretations of law. Legislation has been intro-

duced to amend the Administrative Procedure Act to require courts to review de novo all

agency interpretations of statutes and regulations. More recently, the president nomi-

nated, and the Senate confirmed, a jurist to the Supreme Court—Neil Gorsuch—who as

a circuit judge expressly called into question the constitutionality and wisdom of Chevron

*Address correspondence to Christina L. Boyd, UGA Department of Political Science, 180 Baldwin Hall,

355 S. Jackson St., Athens GA 30602; email: cLboyd@uga.edu. Barnett is J. Alton Hosch Associate Professor of Law

at University of Georgia School of Law; Boyd is Associate Professor of Political Science at University of Georgia;

Walker is Associate Professor of Law at The Ohio State University’s Moritz School of Law.

We appreciate the excellent feedback from Jonathan Adler, Scott Boddery, Nathan Chapman, Cary Coglianese,

Brian Feinstein, Cathy Sharkey, Daniel Walters, participants at the Second Annual Administrative Law New Scho l-

arship Roundtable, and the editors and anonymous reviewers at JELS.

597

deference to agency statutory interpretations. Gorsuch’s doubts about Chevron deference

were front and center at his confirmation hearing.

For more than three decades, Chevron deference has commanded courts to defer

to a federal agency’s reasonable interpretation of an ambiguous statute that the agency

administers (Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. 1984). Courts usually do so

under a two-step framework. Under Chevron’s first step, the court asks whether the statu-

tory provision at issue is unambiguous. If so, the inquiry ends, and the court enforces the

unambiguous meaning. If the provision is ambiguous, the court proceeds to Chevron’s

second step and asks whether the agency’s interpretation is reasonable. If it is, the

agency’s interpretation prevails, even if the court believes that the agency’s interpretative

is not the best interpretation. As opposed to many other standards of review, the Chevron

framework limits judicial interpretive primacy and seeks to separate judges from their

policy preferences.

Over the years, Chevron deference has been subject to extensive debate and discus-

sion. Westlaw reports that the Supreme Court’s Chevron decision has been cited in more

than 80,000 documents in its database, including more than 15,000 cases and nearly

18,000 law review articles and other secondary sources. Indeed, no other administrative

law decision by the Supreme Court has received as many citations in the academic litera-

ture (Shane & Walker 2014:475).

Hundreds of legal scholars, including empiricists, have addressed Chevron’s theoret-

ical foundations, its legal and constitutional status, and its doctrinal scope. A number of

empirical scholars have examined Chevron and case outcomes, either through important

descriptive accounts of how Supreme Court and circuit court cases use Chevron

(Eskridge & Baer 2008; Barnett & Walker 2017a; Pierce 2011; Schuck & Elliot 1990; Mer-

rill 1992; Kerr 1998) or through more systematic empirical examinations of the political

dynamics of judicial decision making in these courts in light of Chevron (Cross & Tiller

1998; Czarnezki 2008; Miles & Sunstein 2006; Sunstein et al. 2004). Among other signifi-

cant insights, this empirical literature reveals that where judges’ partisanship aligned with

the direction of the agency outcome, those judges were more likely to affirm the agency’s

interpretation.

Despite the mountain of Chevron-related scholarship, we continue to have little con-

crete evidence on when and why judges choose to apply the Chevron framework versus

applying some less deferential standard. The judicial choice of whether to apply the Chev-

ron doctrine or some less deferential standard is an important threshold question worthy

of additional attention.

First, the choice of the review standard—Chevron or otherwise—lays the path

toward the outcome in the case. Standards that demand a high degree of deference to

the initial decisions should lead to higher rates of affirmance of those decisions than

standards that give judges more discretion to insert their own preferences. The Chevron

doctrine, when faithfully applied, unquestionably cabins judicial discretion and demands

a high degree of adherence to agency statutory interpretation decisions. As a result,

judges may look to apply less deferential standards of review during times when they are

likely to disagree with the agency. A standard like the Skidmore v. Swift (1944) doctrine,

for example, permits judges not to defer to the agency’s interpretation if that

598 Barnett et al.