In 2024, the U.S. Supreme Court introduced a sea change to federal administrative law when it formally ended the Chevron deference doctrine in Loper Bright v. Raimondo. In its place, Loper Bright calls on judges to review agency interpretations of their statutory authority using de novo review.
Two years later, we are still grappling with the full implications of this decision — not just for administrative law, but for our entire system of governance. The initial conventional wisdom held that Loper Bright’s de novo review would be “anti-regulatory” in impact — that is, it would make it harder for agencies to issue rules that could survive judicial review. While not entirely incorrect, perhaps a better frame for understanding Loper Bright’s significance is that it further concentrates power within Article III courts and that its still-evolving review framework provides federal judges with a powerful vehicle for engaging in judicial activism.
Today, my colleagues Dr. Federico Holm, Arvind Salem, and I are releasing a new article that examines this alternative framing through a quantitative analysis of 83 cases decided during the first 14 months after Loper Bright was handed down. In a previous article, Holm and I examined how courts were resolving cases based on the additional guidance that the Loper Bright majority opinion provides on applying the new de novo approach. What we found was an emerging Loper Bright review framework. Significantly, our research revealed that the ultimate outcome of cases — whether the agency interpretation was upheld or rejected — was often a function of the step at which the case was decided within that framework.
This article builds on that research by using quantitative analysis to identify patterns between how individual cases were decided (i.e., what “step” in the Loper Bright framework proved determinative) and the political affiliation of two key actors involved: the reviewing judge and the agency responsible for the disputed interpretation. The initial research indicated that the steps within the Loper Bright framework were malleable enough that they could be manipulated by judges to support outcomes that matched their policy preference. Through this new research, we set out to determine whether and to what extent judges have been taking advantage of this structural feature of the Loper Bright framework.
While the limited data prevented us from drawing firm conclusions at this point, our analysis revealed some early indications that the Loper Bright framework could enable and encourage judicial activism. Specifically, we found evidence suggesting that:
- Litigants were engaging in forum shopping in Loper Bright cases;
- An overall pattern of judicial activism prevailed in Loper Bright cases; and
- Judges might be engineering their application of the Loper Bright analytical framework to achieve results that appeared consistent with their ideological preferences.
The article provides more detailed quantitative results on which these conclusions are based. It is important again to stress these findings are preliminary due to such constraints as data limitations and other contextual factors. Nonetheless, our assessment provides an initial analytical framework to measure and assess Loper Bright’sapplication in the lower courts.
By continuing to monitor and evaluate additional cases, we expect to get a clearer picture of the effects that its analytical review framework is having in individual cases — and on the stability of our tripartite system of government more broadly.
