II. POSSIBILITIES FOR INSTITUTIONAL. IMPLEMENTATION
If the case for hierarchically variable deference is appealing in principle, could our judicial system implement it in practice? This Part presents some structural and doctrinal possibilities for realizing a hierarchically variable regime. First, however, it describes some ways in which our judicial system manifests hierarchical variation even now. The analysis of this Article helps to explain and justify these existing patterns of variation.
A. Ways in Which Our System Already Displays Hierarchically Variable Deference
1. Unofficial Doctrinal Divergences?
As stated at the outset, official doctrines of deference do not openly embrace hierarchical heterogeneity. (103) Nonetheless, standards of review may be hierarchically variable in practice. Specifically, the Supreme Court may already give agencies less deference than the lower courts typically do. Admittedly, it is hard to be sure: despite the significant and still growing body of empirical literature on deference, (104) the existing research does not allow firm conclusions about differences across courts. Simply comparing agency win rates in different courts will not suffice. For one thing, the Supreme Court's docket is small and highly unrepresentative, reflecting the strategic choices of litigants to seek certiorari and the Justices to grant it. Moreover, it is hard to calculate true levels of deference in any court, for courts might cite a deference regime (or mention facts that would trigger deference) because they plan to defer, rather than the other way around. (Thus, a 100% agency win rate in cases citing Chevron would not necessarily reveal great deference if Chevron went ignored in similar cases that the agency lost.) Nonetheless, despite these complications, there is at least some reason to believe that the Supreme Court is not as deferential as a faithful application of current doctrine would direct. Eskridge and Baer present evidence that the Court does not invoke any deference regime in the majority of cases that involve agency interpretations; this frequently happens even in cases that are, according to prevailing doctrine, Chevron-eligible. (105) The failure to invoke a deference regime is, in turn, associated with lower agency win rates. (106) Further empirical analysis by Raso and Eskridge leads them to the conclusion that the Justices invoke deference regimes episodically and inconsistently, which is not what one would expect if the Court regarded deference regimes as having true stare decisis effect. (107) By way of contrast, there is at least some evidence that the Supreme Court's deference doctrines do have a substantial effect in the lower courts, though to be sure the findings are hardly definitive. (108) Eskridge and Baer float the possibility that the Court regards deference regimes as guides for lower courts but does not regard them as binding or necessary in the Court itself. (109)
Even in the absence of definitive statistical evidence, there are some circumstantial and structural reasons to suspect that the Supreme Court is less deferential than lower courts. First, because the Supreme Court has no reviewing court above it, it need not fear reversal for ignoring or misapplying deference regimes in order to reach particular favored outcomes. Second, the Justices might feel (with some justification) that their relatively favorable decision-making environment-their advantages in resources, time, perceived expertise, and so forth (110)--makes deference less necessary for them than for their more "limited" colleagues in the lower courts. Third, it is easier to write an opinion affirming an agency than an opinion reversing it, and so one imagines that deference is an especially appealing path of least resistance for a busy lower court that lacks the luxury of a discretionary docket. (111)
If it is true that the Court flouts its own deference doctrines, one response is to lament the Court's disobedience. …