SCOTUSblog Term Review on Deference

At SCOTUSblog, Abbe R. Gluck writes about Kennedy v. Braidwood Management, and ” the broader question of how the court will grapple with questions of expertise in the wake of its 2024 decision overruling Chevron v. Natural Resources Defense Council, the key agency-deference case of the modern era.”

Finally, for good measure, the opinion concludes with a touch of implicit Skidmore deference, the pre-Chevron deference regime under which courts give weight to agency interpretations, especially consistent ones, but only to the extent they have the “power to persuade.” Citing Loper Bright Enterprises v. Raimondo, the decision that overruled Chevron, Justice Kavanaugh noted, “the Executive Branch’s actions for the last 26 years … have reflected that straightforward interpretation of the statute—without any apparent objection from Congress … to ‘convene’ the Task Force to include the power to appoint the Task Force members. That considered and consistent Executive Branch practice … buttresses the ordinary meaning and natural interpretation of the term ‘convene’ in the statute.”

This methodology thus follows a trend that has emerged in several other cases this term as the court resets after Loper Bright: The court now insists, in what many view as a revival of Skidmore, that it is construing the statute independently but looks to a consistent agency interpretation as evidence of the correctness of that interpretation.