For the pro-democracy crowd, the arrival of June each year brings a palpable sense of dread. We are keenly aware that it marks the end of the U.S. Supreme Court’s annual term, when the most controversial decisions are handed down. And each year, we are left to anticipate how exactly our oligarchs in black robes will use these decisions to further aggrandize their juristocratic regime in stark betrayal of our constitutional order.
This was certainly the case two years ago when the Court’s archconservative supermajority toppled decades of settled administrative law with their decision in Loper Bright v. Raimondo. In that case, the Court overturned a 1984 decision called Chevron v. NRDC, which had held that democratically accountable agencies should take the first crack at interpreting their statutory authorities. But under Loper Bright, judges now have this power — and they can freely wield it to advance their personal policy preferences without ever having to answer to voters the way the head of the executive branch does.
Much of the commentary around Loper Bright and its potential legacy has been framed around whether it’s “anti-regulatory,” and that’s not entirely incorrect. Perhaps the better way to think about it, though, is as an anti-democratic decision that will reinforce existing power disparities in our society.
The decision is now nearly two years old, and we are just beginning to collect enough data points to identify potential anti-democratic trends. To this end, my colleague Dr. Federico Holm and I are releasing a new article today that analyzes an initial tranche of decisions under the still-evolving Loper Bright framework. This analysis covers 91 federal court decisions that involve some substantive application of Loper Bright, covering roughly the first 14 months after the decision was made.
One of our initial major findings is that there really is no Loper Bright “framework” to speak of. Instead, courts have been all over the place in how they have applied the decision to controversies before them. But, by stitching these decisions together, something approximating a framework does begin to emerge. Using this framework, we were able to ascertain patterns in how cases were being resolved — which issues were dispositive and whether the resolution of those particular issues tended to favor the agency issuing the rule or the member of the public challenging it.
Our key findings from this analysis include:
- Agency “win” rates have been lower under Loper Bright compared to Chevron — 57% of the cases we evaluated, compared to the historical win rate under Chevron of about 70%. Note that “win” rate refers to the specific issue of interpretation of the agency authorizing statute — not necessarily that the rule itself was upheld (though the two do largely overlap). This change suggests a significant increase in judicial second-guessing of agencies.
- Under Loper Bright, agencies tend to win most often when the court’s de novo review finds that Congress intended to confer decision-making discretion on agencies.
- Under Loper Bright, agencies tend to win least often when the court’s threshold review of a provision finds that the relevant statutory language is unambiguous.
- Under Loper Bright, whether or not the court applies the so-called Skidmore respect factors as part of its de novo review does not seem to have an appreciable impact on the outcome of cases.
In the months ahead, we plan to dig deeper into these data, as well as explore public comment data to discern whether Loper Bright is affecting how sophisticated stakeholders engage in the notice-and-comment rulemaking process. Stay tuned!
