Judicial Humility and Reticence in Administrative Law
Humility has been top of mind for Justice Elena Kagan, a concern surfacing often in her questions and opinions across several terms whenever the case involves a federal agency. The Supreme Court, in her view, lacks humility. And it demonstrates this lack whenever it questions agency priorities.
In January, the Court heard two cases challenging the Chevron doctrine, which requires courts to defer to an agency’s “reasonable” interpretation of gaps or ambiguities in statutes. Footnote #1 content: Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) (No. 22-451); Relentless, Inc. v. Dep’t of Com., No. 22-1219. Justice Kagan answered that challenge by calling Chevron a “doctrine of humility.” Footnote #2 content: Transcript of Record at 34, Loper Bright Enters. v Raimondo, 144 S. Ct. 2244 (2024) (No. 22- 451). “We know in our heart of hearts,” she explained “that agencies know things that courts do not. And that’s the basis of Chevron.” Footnote #3 content: Id. Justice Kagan, and likeminded thinkers, rely on the agency-specific ability to “know things” as the primary justification for assuming that Congress prefers agencies, not courts, to resolve ambiguities in statutes. Convinced of the agencies’ epistemic superiority, Justice Kagan reminded her colleagues in West Virginia v. EPA that “this Court has historically known enough not to get in the way.” Footnote #4 content: West Virginia v. EPA, 597 U.S. 697, 782 (2022). Many scholars defend judicial deference in similar terms. Footnote #5 content: See, e.g., ADRIAN VERMEULE, LAW’S ABNEGATION: FROM LAW’S EMPIRE TO THE ADMINISTRATIVE STATE 8 (2016) (arguing that the judiciary’s surrender of power to the administrative state was done for “valid lawyerly reasons” and that “good Dworkinians” should support it); Cass R. Sunstein, Chevron As Law, 107 GEO. L.J. 1613, 1666 (2019) (acknowledging the possibility that Chevron “unleashes political officials from law” but taking the position nonetheless that it is a doctrine of judicial humility); Gillian E. Metzger, The Roberts Court and Administrative Law, 2019 SUP. CT. REV. 1, 43–44 (2019) (“Moreover, the arguments for deference to agencies on fact and policy matters-such as agencies’ greater political accountability, expertise, or congressional authorization-also push toward deference in law application, which easily spills over into law interpretation.”); Stephen Breyer, The Executive Branch, Administrative Action, and Comparative Expertise, 32 CARDOZO L. REV. 2189, 2193 (2011) (“Courts find the notion of comparative expertise useful, indeed necessary, when reviewing administrative decisions.”); Mark Seidenfeld, Chevron’s Foundation, 86 NOTRE DAME L. REV. 273, 275 (2011) (arguing that Chevron “encourages courts to refrain from dictating outcomes in policy-laden decisions”); David J. Barron & Elena Kagan, Chevron’s Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 223 (2001) (“[Chevron] stressed more heavily the virtues of placing interpretive decisions in the hands of accountable and knowledgeable administrators.”).
The types of determinations for which agencies demand judicial deference vary; the determination may be factual, whether pertaining to the agency’s area of expertise or not; it may be a determination of the law’s application to certain facts; or it may be a pure question of law, a assertion of what a provision in the agency’s organic statute means or what that law’s metes and bounds are. Regardless of the type of decision for which deference is sought, there are good reasons to think that the epistemic gap between agencies and courts is neither so deep nor so wide as to merit deference and that the insistence on deference as a form of humility is premised less on a judicial incapacity to address borderline cases and more about a preference for shifting policymaking towards the executive branch. Footnote #6 content: See Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 YALE L.J. 908, 994 (2017); see id. at 994 n.370. This conclusion has implications for other deference rationales.
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