Judicial Review of Administrative Discretion: How Justice Scalia and Breyer Regulate the Regulators

By Scott Allen Clayton | Go to book overview

CHAPTER 8
Comparing Judicial Principles with
Decisions

The Court’s literalism is selective, and it results in a strange
and disjointed regulatory scheme

—Justice Alito, Utility Air Regulatory Group v. EPA

…it is not illegal to run afoul of the ‘purpose’ of a statute,
only its letter

—Justice Thomas, United States v. O’Hagan


IDENTIFYING AND APPLYING THEMES

This chapter begins the analysis of the opinions with respect to Table 7.1–7.4 findings, to discuss themes identified across all cases reviewed. To help construct this section of the analysis, Rohr’s pillars (dialectic, pertinent, institutional, and concrete)—explaining the importance of assessing the judiciary as a way to assess “regime values”—are used as a guidepost to cover the opinions. The first section covers Rohr’s “dialectic” pillar by exploring the consistency of each Justice’s judicial review of administrative discretion and evaluates any apparent contradictions or disconnections from each Justice’s stated theory of legal reasoning and actual practice. This section will also highlight key areas of agreement and disagreement between each Justice’s opinions and the reasoning employed for their similar and contrary positions. The next section will use Rohr’s “pertinent” pillar by focusing on how each Justice applied judicial review across different types of administrative actions found in the cases reviewed—all of which are relevant and important as they represent different methods practitioners actually use discretion. The types of discretion found in the cases reviewed include, agency notice-and-comment rulemaking, interpretive rules, interpretation of statutes, and agency inaction. In other words, this section groups the cases by different types of administrative actions

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