Center for Progressive Reform Once Again Distorts Loper Bright and Judicial Review

The Center for Progressive Reform (“CPR”) has published a second report that analyzes the impact of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo.  That report argues Loper Bright is “providing a vehicle for judicial activism” with “troubling implications for the future of U.S. democracy.”  But CPR’s dataset is too limited to support its conclusions, and its substantive analysis rests on a mistaken understanding of how courts are supposed to function and how to apply Loper Bright.  Of note, CPR’s new findings are built on an earlier report that was published in June 2026, which sought to survey initial reception of Loper Bright by the lower courts.  I published a thorough critique of that initial work. 

CPR’s Claim: Loper Bright = Judicial Activism 

CPR’s overarching thesis is that Loper Bright has “transfer[ed] a massive amount of power from the more democratically accountable branches . . . to the judiciary,” and is a vehicle for judges to more easily reject regulations that align with their policy preferences, or alternatively, to affirm those with which they agree.  Yet CPR relied on the same limited dataset it did for its initial report, with several cases excluded because they were “resolved on the basis of statutory stare decisis,” decided by magistrate judges, or involved application of so-called Skidmore deference.  Setting aside the small dataset, what is CPR’s conclusion?  That “Republican judges” are more likely to resolve cases based on the “unambiguous” meaning of statutory terms and to reject rules promulgated during Democratic presidential administration.  The same “pattern,” moreover, “only partially h[o]ld[s] for Democratic judges.” 

Of the 39 cases involving a Republican judge reviewing a Democratic interpretation, the judge framed the disputed term as being unambiguous 12 times (31% of the total).  In contrast, Republican judges construed the disputed term as conferring discretion 7 times (18% of the total) in such cases.  

Republican judges did not seem to engage in the expected strategic behavior when confronted with cases involving a Republican interpretation, however.  Of these 14 cases, the judge construed the disputed term as conferring discretion only 3 times (21% of the total).  Significantly, this was the same number of times the judge framed the term as being unambiguous (3 times, or 21% of the total). 

Similarly, this pattern only partially held for Democratic judges.  Of the 12 cases involving Democratic judges reviewing Republican interpretations, the Democratic judge ultimately framed the disputed term as unambiguous only 2 times (17% of total).  Surprisingly, the Democratic judge was slightly more likely to construe the disputed term in these cases as conferring discretion (3 times, or 25% of the total). 

Democratic judges did appear to behave more strategically in cases involving Democratic interpretations, however.  Out of 18 such cases, they construed the disputed term as conferring discretion 3 times (17% of total).  This occurred slightly more frequently than instances in which the Democratic judge framed the disputed term as being unambiguous (2 times, or 11% of the total). 

Reasons for Doubting CPR’s Claims 

As with its first report, there are serious methodological and doctrinal problems that call into question the usefulness of CPR’s claims.  Let’s start with the former.  CPR readily acknowledges the limitations of its dataset, which is “comprised [of] only 83 cases” decided during “the earliest days of the new Loper Bright regime.”  Yet, as of today, there are nearly 3,000 federal district court decisions that cite Loper Bright.  Although many of these are unlikely to involve substantive application of the new Loper Bright framework for de novo review, CPR’s dataset is woefully inadequate to support its broad claims about judicial behavior.   

Relatedly, CPR’s “forum shopping” claims are not persuasively established by its own data.  First, CPR’s report does not account for the absolute number of regulations under review and whether they were the products of “Democratic policies.”  In other words, CPR never establishes baseline expectations.  CPR’s own graphs show that most of the cases in its dataset involved regulations promulgated by Democratic administrations.  The data are not so much evidence of “forum shopping” as they are proof of complainants’ interest in challenging rules that are more likely—given the philosophical alignment of most Democratic administrations—to have stretched agency authority by relying on statutory ambiguity or silence.  Those are exactly the sorts of regulations that might have triggered Chevron Step 2 analysis, and which are now prime for revisiting.   

Second, the report fails to address the overall composition of the district courts in which the cases comprising the dataset were filed.  Seeing as cases are randomly assigned at the district court-level, it is unclear how any reliable conclusions can be drawn without inquiring with specific plaintiffs their venue preferences.  If anything, the authors’ claims on this front would have been more interesting if they had focused on the circuits in which cases tended to be filed, rather than the political affiliation of any individual district judge.  Although it is true that those seeking judicial review of agency actions are likely to seek advantageous fora.  

The most problematic aspects of CPR’s report, however, are doctrinal.  And, on this front, my criticisms remain unchanged.  First, the report mischaracterizes the Loper Bright framework.  The authors conceptualize de novo review as first inquiring into “whether statutory stare decisis governs a case,” then identifying ambiguous statutory terms, and finally, in the face of ambiguity, considering whether such ambiguity “confers discretion to the agency.”  Only after exhausting these steps should a judge “[d]etermine if the agency’s interpretation of a disputed ambiguous term matches the court’s best reading,” while also accounting for “Skidmore respect.” 

None of this can be found in Loper Bright.  To start, stare decisis does not function as an exception to de novo review.  Although a prior decision may end up being dispositive in a given case—and not necessarily because it got an interpretive question correct!—stare decisis could just as well be considered at the end of a court’s application of Loper Bright as a reason not to upset precedent.  More concerningly, there is no reason under Loper Bright for courts to set about trying to locate textual ambiguity.  The Loper Bright Court was clear that the overruling of Chevron deference meant the end of implicit delegations based on interpretive presumptions grounded in ostensible ambiguity.  As the Chief Justice explained, it is a court’s role to provide an independent judgment as to the best reading of the law.  Under CPR’s approach, by contrast, statutory ambiguity remains the central trigger for agency discretion, which reintroduced the distortion that necessitated Loper Bright in the first place.  Finally, the report misconstrues the role of express delegations that confer regulatory discretion to an agency.  Under Loper Bright, courts retain responsibility for ensuring that a delegation is properly defined and bounded.  This involves an act of judicial engagement that leaves little room for deference to an agency. 

Conclusion 

As before, CPR’s dataset hardly suggests a massive shift towards greater judicial activism, let alone judicially led deconstruction of the administrative state.  To the extent there is any shift in how judges tend to be ruling in administrative law cases, the most reasonable explanation is they are no longer deferring to agencies.  Good!  Whether one supports the result as a matter of policy, the end of Chevron deference has restored to courts the authority to decide questions of law, as required by the Administrative Procedure Act.  

To the extent there is any discernable difference in how Loper Bright is being interpreted and implemented, it is more likely that is the result of an underlying conflict of vision between conservative and progressive jurists.  CPR admits, for example, that “Republican judges were notably reluctant to construe Republican interpretations of disputed terms as conferring discretion, even though doing so would make it easier for them to uphold those interpretations.”  That is, their “stance” was entirely “consistent with conservatives’ longstanding opposition to the Chevron deference doctrine.”  Although CPR dismisses this principled commitment to legal interpretation as merely “an adequate alternative means” to “achiev[ing] . . . ideological ends,” that dismissive conclusion seems quite unfair.  As Loper Bright’s conceptualization of the judicial role continues to mature and be elaborated upon, the kind of partisan analysis undertaken by CPR will become ever more unpersuasive. 

Ryan P. Mulvey is senior policy counsel at Americans for Prosperity Foundation.