It seems to me the normal way anybody reads a text is, you know, what does it mean?
Justice Scalia, from his brief exposure to the D.C. Circuit, and his awareness of what
was going on there, both before and after he became a judge, he did not like judges,
you know, running off and making policy judgments on their own.
He saw Chevron as a way of kind of holding that, that temptation in check.
Which I think explains why his, his great, uh, enthusiasm for the Chevron doctrine.
It's known as the Chevron deference.
It allows federal agencies to interpret ambiguous statues and federal courts must defer to their
rulings.
Some have recently pushed back at the ruling indicating that the Trump Administration,
as well as Justice Gorsuch, and the late Antonin Scalia say, no more.
Justice Scalia, uh, was one of the strongest advocates of Chevron deference.
And that makes him kind of counterintuitive today.
Justice Scalia's jurisprudence w-was ones of rules and judicial administrability and
Chevron deference was a bright-line rule...
... that could be easily applied by the lower courts
a-and by regulated entities.
So, it brought certainty and reliability to the process.
Justice Scalia's got an extremely interesting relationship to Chevron.
So he was sitting on the D.C. Circuit at the time Chevron was decided.
And, uh, the D.C. Circuit is, and was, the circuit that hears the most of these cases
involving challenges to agency decisions and interpretations of statues.
He only wrote in three cases where Chevron was mentioned.
There's no sign that he was really a Chevron groupie when he was on the D.C. Circuit.
But shortly after he got on to the Supreme Court, uh, he very quickly established himself
as the justice who was very passionately committed to the Chevron approach to reviewing agency
questions of law.
He wrote a law review article in 1990 in which he extolled the Chevron doctrine, largely
on the grounds that it was more rule-like than the multifactorial approach that preceded
Chevron.
He didn't suggest necessarily it would result in more deference to agencies, but he thought
it was, uh, one that was, um, because of the two-step process, more of a rule-like structure
as opposed to an amorphous multifactorial test.
He- he hated multifactorial tests.
But Justice Scalia, there's one opinion toward the very end where he seems to express maybe
some tentative doubts about whether this all was right or not, but, uh, unfortunately,
he died before he could clarify his views.
I actually think that, although Justice Scalia was very much, for much of his judicial career,
one of the foremost proponents of Chevron deference, I think by the end of his career,
uh, that was very much eroding, and I think he was potentially on the verge of really
reconsidering that in a pretty fundamental way.
And I want to make that point really through the lens of a closely-related form of deference,
so-called Auer or Seminole Rock deference, where he did fundamentally, uh, evolve in
his views and change his mind.
Judging by Justice Scalia's opinions and his public statements, I think it's fair to say
that his views of Chevron did change over the course of his tenure.
I think, at least partly, as a result of the fact that his colleges did not always follow
his vision of Chevron.
And because it wasn't evolving in the way that he thought it should.
And I think, too, because he recognized that it had become a tool, on occasion, for judicial
abdication of the Court's appropriate role.
He became less enamored of Chevron, not necessarily as a doctrine per se, but as a doctrine as
applied.
I think that Justice Scalia probably grew a little tired of Chevron at the end, uh,
because his approach to Chevron, uh, was that, at step one, the answer was almost always
that the statute was unambiguous.
He would apply all the tools of statutory interpretation, including terms of art, uh,
in order to eliminate ambiguities, where a lot of other justices and other judges wouldn't.
And so, for him, deference didn't usually apply because statutes were clear.
So I do think as his views evolved on Auer, uh, I think he also planted the seeds for
even a greater reconsideration of Chevron.
The court's application of the Chevron standard has changed substantially over time.
There's great disagreement among the justices about exactly what Chevron requires.
We have lots of arguments among the justices about the scope of Chevron's domain.
We have lots of arguments among the justices about exactly how robust the inquiry ought
to be at Chevron step one.
Just as we have disagreements among the justices about the proper role of legislative history
and statutory interpretation, or how much significance ought to be given to statutory
purpose in evaluating statutory interpretation.
As the disagreements among the justices have unfolded over time, of course Chevron jurisprudence
in the Supreme Court has changed along with it.
Justice Thomas, more recently, has become skeptical about the Chevron doctrine, and Justice Gorsuch
seems skeptical about the Chevron doctrine.
So, stay tuned, we'll see what happens going forward.