Wednesday, January 28, 2004

Scalia and Stevens - An introduction

Last year Justice Scalia came to speak at the University of Chicago. During his speech, the main content of which escapes me at the moment, Justice Scalia stated that no matter what Justice Stevens said Chevron meant, he (Justice Scalia) knew better. Stevens, for what it's worth, actually authored Chevron, so we might assume that would have some superior interpretive position - sadly not. Chevron, incidentally, is available at 467 US 837 (1984).

The disagreement Scalia referred to goes to the theoretical underpinnings of Chevron (Chevron, in turn, deals with judicial review of administrative interpretations of law - and essentially says that courts should accept an agency's reasonable interpretation of an ambiguous statutory term that the agency administers - I know, it doesn't sound watershed, but it is).

I quote now a speech Justice Scalia delivered. First, in response to the "expertise" rationale offered by those who urge judicial deference Scalia remarks:

"The cases, old and new, that accept administrative interpretations, often refer to the 'expertise' of the agencies in question, their intense familiarity with the history and purposes of the legislation at issue, their practical knowledge of what will best effectuate those purposes. In other words, they are more likely than the courts to reach the correct result. That is, if true, a good practical reason for accepting the agency's views, but hardly a valid theoretical justification for doing so. If I had been sitting on the Supreme Court when Learned Hand was still alive, it would similarly have been, as a practical matter, desirable for me to accept his views in all of his cases under review, on the basis that he is a lot wiser than I, and more likely to get it right. But that would hardly have been theoretically valid. Even if Hand would have been de facto superior, I would have been ex officio so. So also with judicial acceptance of the agencies' views. If it is, as we have always believed, the constitutional duty of the courts to say what the law is, we must search for something beyond relative competence as a basis for ignoring that principle when agency action is at issue."

Scalia continues in his search for a theoretical basis for Chevron:

"If the Chevron rule is not a 100% accurate estimation of modern congressional intent, the prior case-by-case evaluation was not so either -- and was becoming less and less so, as the sheer volume of modern dockets made it less and less possible for the Supreme Court to police diverse application of an ineffable rule. And to tell the truth, the quest for the "genuine" legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn't think about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.

"If that is the principal function to be served, Chevron is unquestionably better than what preceded it. Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known. The legislative process becomes less of a sporting event when those supporting and opposing a particular disposition do not have to gamble upon whether, if they say nothing about it in the statute, the ultimate answer will be provided by the courts or rather by the Department of Labor." See Scalia, Judicial Deference to Agency Interpretations of Law, 1989 Duke L J 511.

Essentially, Scalia says that Chevron favors rules (and therefore certainty, clarity, rule of law, etc.) rather than discretion (also rather than constitutionality, separation of powers, expertise, or any other rationale). I think these quotes set up the debate nicely (even if showing my natural predisposition towards Scalia's point of view). What does Stevens think Chevron means? Tune in soon, as Brian highlights some Stevens dissents from post-Chevron cases.

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