ANALYSIS: Lawyers Expect Court to Reshape Chevron, Not Smash It

The US Supreme Court will likely decide this term whether to overrule the case that established the Chevron doctrine, which allows federal agencies to take the lead on resolving policy questions when nuances exist in statutory law.

Most respondents to a Bloomberg Law survey question about the fate of Chevron, though, don’t think that the court will overrule Chevron v. NRDC outright. These respondents, who are primarily lawyers and other legal professionals, think instead that the high court will change the applicability of the doctrine.

Surprisingly, only 11% of 487 respondents to Bloomberg Law’s most recent State of Practice survey think that the Supreme Court will completely overrule Chevron—despite the fact that the petitioners asked the court to do just that. Members of the court also have recently expressed dissatisfaction with or outright disdain for the doctrine.

Nearly half of respondents (48%) think that the court instead will limit or restrict Chevron’s applicability—narrowing the circumstances when courts defer to agencies.

Others (15%) think the court will adopt a different standard, such as the Skidmore standard, which favors persuasion over deference. (One percent think that the Court will do something else, and 24% chose not to answer or weren’t familiar with the doctrine.)

Just 2% of the respondents think that Chevron will survive this challenge unscathed—not a surprising outcome. It’s not often that this Supreme Court accepts a case asking for the outright overruling of a precedent and then upholds that precedent unchanged.

The core concept contained in Chevron—agency deference—is clearly a target. But the way the high court goes about changing the relationship between courts and agencies will be important to legal doctrine, appellate review, and policy for many years going forward.

Bloomberg Law subscribers can find related content on our new In Focus: Chevron, Loper & Agency Deference page, our new Practical Guidance on the Chevron Doctrine, and our new Practical Guidance on Judicial Standards for Agency Review.

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