Academic journal article Northwestern University Law Review

Justice Stevens and the Chevron Puzzle

Academic journal article Northwestern University Law Review

Justice Stevens and the Chevron Puzzle

Article excerpt

ABSTRACT-Justice Stevens's most famous decision-Chevron U.S.A. Inc. v. NRDC-has come to stand for an institutional choice approach to agency interpretation. But there is no evidence that Justice Stevens shared this understanding. Instead, he followed an equilibrium-preserving approach, which sought to nudge agencies to reconsider decisions the Justice regarded as unreasonable. Although the equilibrium-preserving approach is consistent with what a common law judge would embrace, the institutional choice perspective is probably more consistent with the needs of the modern administrative state, and it appears the Court as a whole is gradually adopting that perspective.

INTRODUCTION

It was a privilege to speak at the gathering honoring the judicial career of Justice Stevens. I was able to observe Justice Stevens on the Court for many years-first as a law clerk to Justice Blackmun, later as a lawyer in the Solicitor General's office, and finally as an academic and occasional participant in Supreme Court cases. It was a special honor for me when I was named the inaugural John Paul Stevens Professor of Law at Northwestern in 1993, a position I held for ten years. This was because I had come to regard Justice Stevens as the Court's best lawyer. One may not always agree with the results Justice Stevens reached-I certainly did not. But he was the quintessential common law judge, who approached each case with its own particularity. He was always prepared, with a sure grasp of the record and the relevant precedents in each case, and an uncanny insight into strengths and weaknesses of the competing positions. This meant he had a unique ability to spot-and expose-the weaknesses in every lawyer's case, to the frequent discomfort of the advocates. For this, if no other reason, the Court was greatly strengthened as an institution during his long tenure.

This Article addresses Justice Stevens's most famous decision, Chevron U.S.A. Inc. v. NRDC.1 Certainly it is his most cited. A Westlaw search reveals that Chevron has been cited in 11,760 judicial decisions and 2130 administrative decisions.2 It continues to accumulate judicial citations at the rate of about 1000 per year. It is eclipsed only by decisions like Erie Railroad v. Tompkins3 (14,663 decisions) and Bell Atlantic Corp. v. Twombly4 (47,339 decisions). The company it keeps provides a clue about the reason for its frequent invocation. Chevron has become the leading decision expressing the standard courts should apply in reviewing an administrative agency's interpretation of a statute it administers. As such, it has transsubstantive significance-it is potentially relevant in any case in which an administrative body has weighed in on a statutory interpretation issue before a court, which includes a high percentage of cases on the noncriminal docket.

Chevron's significance goes far beyond its utility as a statement of the standard of review, however. This is revealed by its frequency of citation in law review articles. Chevron has been cited by 8009 articles included in the Westlaw database.5 The fascination academics have for Chevron means it has now been cited far more than Erie (5052), a decision Bruce Ackerman once described as the "Pole Star" for an entire generation of legal scholarship.6 Indeed, Chevron's frequency of citation in law review articles puts it in roughly the same league as Marbury v. Madison7 (8492), which is perhaps appropriate given that Chevron has been called the "counter- Marbury" for the administrative state.8

When we seek to evaluate this most consequential of decisions in light of what we know about its author, however, we encounter a puzzle. Chevron has come to stand for judicial deference to administrative interpretations of law; yet overall, Justice Stevens was not especially deferential to agency decisions.9 Chevron has also been understood to mark the beginning of a willingness on the part of the federal courts to share interpretational authority with administrative agencies; yet there is little indication that Justice Stevens ever doubted the unqualified judicial prerogative to "say what the law is. …

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