No Signs of a Skidmore Revival at the Supreme Court

Earlier this week at SCOTUSblog, Columbia University law professor Abbe Gluck suggested the Supreme Court’s recent opinion in Kennedy v. Braidwood Management might reflect what some have forecast as a “revival” of so-called “Skidmore deference.”  On her reading of Kennedy, the Court’s examination of “considered and consistent Executive Branch practice—which beg[ins] contemporaneously with enactment of [a] statute”—should not only play an essential role for judges offering their independent judgment as to the best meaning of the law, as required by Loper Bright, but also hints at a reinvigoration of the deference—or “weight”—given to agency legal interpretations under Skidmore v. Swift & Co.

Although Professor Gluck is right to highlight Justice Kavanaugh’s emphasis on the utility of longstanding and consistent agency interpretations, it would be wrong to see such emphasis as a revival of Skidmore, let alone any other type of special solicitude for the views of agency “experts.”  The Kennedy decision—along with other cases this term like McLaughlin Chiropractic and VanDerStok—is best understood as part of the Supreme Court’s efforts in the wake of Loper Bright to revitalize the traditional canons of statutory interpretation.  Those canons, which play a vital role in the judicial act, long predate Chevron, Skidmore, or the modern administrative state.

Loper Bright and “Respect” for Agency Interpretations

Loper Bright Enterprises v. Raimondo stands for the simple proposition that federal judges must exercise independent judgment to provide their best reading as to the meaning of the law.  Judges have various tools at their disposal to reach that best reading.  Foremost among them are the canons of statutory construction.  These are the rules of the road for how judges interpret legal texts while sticking to “lawfinding rather than lawmaking,” as Justice Gorsuch wrote in his Loper Bright concurrence.

Even though Loper Bright eliminated Chevron’s command to defer to an agency’s legal interpretation in a case of statutory ambiguity, it left room for judges to afford “due respect” to the views of the Executive Branch when trying to discern the meaning of an obscure or difficult term or phrase.  As the court explained, “due respect” to an agency’s construction of the law can prove useful for resolving such obscurity, especially if an agency “interpretation was issued roughly contemporaneously with enactment of the statute” at issue and has “remained consistent over time.”  Such respect might also be appropriate when an agency’s views are based on “factual premises” within its technical “expertise.”  Yet the Loper Bright court made clear that “respect” never entails displacement of a court’s own best judgment.  “Due respect” is not equivalent to the deference previously afforded to agencies under Chevron.

What about Skidmore?

At various points in its discussion of “respect” for agency legal interpretations, the Loper Bright majority cited an important administrative law case from the 1940s: Skidmore v. Swift & Co.  In Skidmore, the Supreme Court identified several factors that counsel in favor of judges giving agency interpretations “weight” when deciding questions of law.  Specifically, the Skidmore court explained agency “interpretations and opinions,” when “made in pursuance of official duty” and “based upon . . . specialized experience,” “constitute[] a body of experience and informed judgment to which courts . . . [can] properly resort for guidance.”  The force of those interpretations, in turn, depends on “the thoroughness evident in [the agency’s] consideration [of the issue at hand], the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”  Although the Court may not have intended Skidmore to function as a deference doctrine, in many cases the “power to persuade” tended towards a real power to control.

But what does that all mean now?  The Loper Bright court’s repeated references to Skidmore, without any obvious unpacking of what that “deference” looks like after Chevron, may seem to verge on the irresponsible.  It certainly fueled academic curiosity, with scholars like Professors Kristin Hickman and Bernard Bell considering how courts might revitalize or expand Skidmore’s domain.

But it is hard to square a robust neo-Skidmore-deference doctrine with the overall thrust of Loper Bright.  Every reference to Skidmore (save one) in Loper Bright is accompanied by a reiteration of the importance of the longstanding and contemporaneous qualities of an agency’s interpretation.  None of the other Skidmore factors, such as procedural rigor or internal logic, are mentioned.  That likely reveals the Loper Bright court’s intent to reign-in and limit any revival of Skidmore, or perhaps even to redefine it for the post-Chevron age.  Judge Kavanaugh’s comments during the Loper Bright oral argument are telling, in this regard, especially as he wrote the opinion in Kennedy.

Justice Kavanaugh’s narrow reading of Skidmore stands in stark contrast to the aggressive version found in United States v. Mead Corp.  There, Justice Souter enumerated a host of factors that might trigger a “fair measure of deference” to an agency whenever a question arises over the meaning “its own statute,” such as the “degree of the agency’s care, its consistency, formality, and relative expertness.”  Justice Scalia, in dissent, castigated this approach as ill-defined, especially as to the level of deference actually afforded to an agency.  Skidmore, as refined by Mead, was akin to “that test most beloved by a court unwilling to be held to the rules (and most feared by litigants who want to know what to expect): th’ol ‘totality of the circumstances’ test.”  This criticism holds true today.  A resurrected totality-of-the-circumstances Skidmore that functions just like Chevron would be “a recipe for uncertainty, unpredictability, and endless litigation.”

The October 2024 Term—Whither Skidmore?

This brings us to the Court’s recently completed term.  Does Kennedy represent a meaningful revival of Skidmore?  The evidence would suggest not.

To begin with, the Supreme Court has not once cited Skidmore since Loper Bright was decided.  It would be curious indeed if the Court intended to leave the door open to neo-Skidmore deference, but without any citation to the seminal decision.  Similarly, it is hard to countenance how “due respect” could translate to a revitalized deference regime after the Court’s explicit clarification in Seven County Infrastructure Coalition v. Eagle County that judicial review under Section 706 of the APA really does mean de novo review.  The silence of Loper Bright on this point left some pro-Chevron commentators hopeful that Skidmore could serve as a vehicle for reintroducing deference.  That seems unlikely at this point.

This term’s decisions instead reflect a decided effort by the Court to stress the basic aspects of statutory construction and to revive traditional interpretive canons.  Consider, for example, McLaughlin Chiropractic Associates v. McKesson Corp., which directs courts to “determine the meaning of the law under ordinary principles of statutory interpretation.”  To the extent “appropriate respect” is due to an agency’s interpretation of the law, that respect must be realized in the application of the canons.  McLaughlin is particularly insightful on this point, as it resolved a circuit split over whether, under the Hobbs Act, district courts in private enforcement proceedings were bound by prior agency interpretations reached in administrative adjudicative proceedings—the sort of context in which “due respect” under Skidmore would have been cited.

The decisions in Bondi v. VanDerStok and Kennedy are noteworthy for a different reason.  In each of these cases, the Court explained how and when an agency’s interpretation of the law might be useful in statutory construction.  Specifically, the Bondi court explained “the contemporary and consistent views of a coordinate branch of government can provide evidence of the law’s meaning.”  And the Kennedy court spoke of how “considered and consistent . . . practice” that “began contemporaneously with enactment” of the statute might “buttress[] the ordinary meaning and natural interpretation” of the legal language.  Neither of these statements hints at Skidmore deference.  Neither of them suggests an agency’s view of the law is intrinsically valuable. 

Instead, both VanDerStok and Kennedy support the idea that an agency’s longstanding and consistent reading of a statute is only useful insofar as it is probative of the original public meaning of the law.  Agencies are first-in-time implementers and principal executors of the law; it is commonsensical that they might have valuable insight into a statute’s meaning, especially when a reviewing court sits far in time from enactment of any given law.  But an agency interpretation deserves no “respect” for its own sake, that is, because it represents the views of an “expert” agency, let alone a coordinate branch of government. 

The Court’s reference to “due respect” in Loper Bright, and its repeated appeal to longstanding and consistent agency practice in the past term, is an attempt to reestablish two longstanding interpretative canons that predate the advent of modern administrative law and Skidmore: the contemporanea expositio and interpres consuetudo canons.  Professor Aditya Bamzai has written extensively about the provenance and contours of these canons, which were traditionally “considered part and parcel of de novo review.”  Members of the Court, too, have highlighted the importance of the canons long before Loper Bright.  Justice Kavanaugh, for example, explained in his concurrence in Sackett v. Environmental Protection Agency, how a “longstanding and consistent agency interpretation” might “reflect[] and reinforce[] the ordinary meaning of the statute.”  And Justice Thomas, when dissenting from the denial of certiorari in Baldwin v. United States, analogized the use of these canons to “the more general principle of ‘liquidation,’ in which consistent and longstanding interpretations of an ambiguous text could fix its meaning.”

Conclusion

The trend at the Supreme Court is clear—there is no revival of Skidmore underway, but rather a reinvigoration of the traditional contemporanea expositio and interpres consuetudo canons.  Of course, things will be messy in the lower courts in the near term.  The Ninth Circuit has already issued what might be described as a “Skidmore maximalist” opinion in Lopez v. Garland.  And, on the other end of the spectrum, the Fifth Circuit, in Mayfield v. Department of Labor, asked “what work Skidmore can do” any longer.  The law admittedly moves slowly.  But over time—and assuming the current composition of the court is maintained and its textualist temperament continues—it is unlikely that any serious Skidmore-deference doctrine will grow roots.