Judiciary Braces for Case Spike If Supreme Court Guts Chevron

A US Supreme Court ruling that further weakens or even overturns the power of federal agencies to interpret ambiguous laws would force lower courts to take on much of that burden.

That would mean ballooning caseloads for judges overseeing disputes involving technical rules in areas like environment and finance. And some courts are so short-staffed that openings have been declared judicial emergencies.

Such a burden may depend on whether the justices by the end of June reverse so-called Chevron deference or merely put new limits on it, and whether a ruling is retroactive, which could prompt an onslaught of requests to reopen litigation, former district judges said.

“It’s not going to make life easier for the district courts. Whether it’s a ‘sky is falling’ situation, it remains to be seen,” said Jeremy Fogel, a former US district judge in northern California, and now executive director of the Berkeley Judicial Institute.

Chevron deference is a landmark administrative principle from a 1984 Supreme Court decision in a Clean Air Act dispute. Conservatives have sought to restrict its use, saying Chevron enables regulatory overreach by the progressive-led administrative state, or “deep state.” The Biden administration says Chevron promotes predictability, political accountability, and respects agency expertise.

Thousands of Cases

The conservative-led Supreme Court has chipped away at Chevron, and its fate appeared uncertain at best following January’s argument in the latest challenge involving a policy requiring fishing boats to bear the cost of transporting government-mandated monitors.

Supreme Court Justice Sonia Sotomayor said at argument that 17,000 cases rely on Chevron, a figure illustrating the scope of potential fallout from a ruling.

Several former judges predicted a decision against Chevron in Relentless Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo would prompt more legal challenges, as reversing deference would lower the bar in some cases for the US to lose in court.

Ending Chevron could also lead to larger records produced in those cases, making each one more labor intensive, they said.

“It’s really going to be a dramatic increase in what district judges are going to have to review,” said John Michael Vazquez, a former judge at the New Jersey federal trial court.

Increasing caseloads would hinge mainly on the contours of a ruling, whether it’s a reversal or more clarification for when deference is appropriate.

And if the justices apply their decision retroactively, rather than limiting it to future cases only, it could lead to a flood of requests to reopen earlier litigation, former judges said.

The impact of such a ruling would be particularly felt at nearly a dozen courts with roughly 20 vacancies dubbed “judicial emergencies,” which flags open spots in courts that have a high ratio of filings per judge.

More Challenges

In addition to possibly overwhelming busy trial courts, fallout could slow agency action, said Jody Freeman, a Harvard Law School professor who specializes in administrative and environmental law.

“It will be open season on agency interpretations in many statutes, leading to a lot of instability, a lot of litigation, a lot of uncertainty,” Freeman said.

In a world without Chevron, agencies would “need to be more conservative with their rulemaking,” said Beth Neitzel, a partner at Foley Hoag who previously served as a senior counselor to Homeland Security Secretary Alejandro Mayorkas.

Otherwise, agencies may be forced to go back to the drawing board on major policies as courts, no longer deferring to their interpretations of laws, strike them down.

“They’ll have to start all over again, and every time they do it, it is a massive amount of work for the agency. And each time, private industry has to anticipate what that new regulatory structure is going to look like, and adapt their operations accordingly,” Neitzel said. “There is likely to be a lot more volatility, and in turn, a lot more work.”

And these challenges on the lower courts are likely to be particularly acute when it comes to litigation involving technical issues.

“I’ve had, as a trial judge, Administrative Procedure Act challenges to regulations where you get a 10,000-page record, where the agency has had hearings and made findings and gone through that, and it deals with something very, very specialized,” said Paul Grimm, a former federal judge in Maryland and current director of the Bolch Judicial Institute at Duke Law School. “Does the judge have the ability to appoint an expert to advise the judge?”

Cases requiring an understanding of complex science or financial regulation may prompt judges to treat them as policy questions, rather than legal ones, allowing them to continue deferring to the agency in some instances, said Lisa Schultz Bressman, a Vanderbilt Law professor specializing in administrative law.

“The biggest practical effect might be for courts to feel sort of uncomfortable deciding these policy-laden questions, in part because the records are incredibly voluminous, they have so much on their dockets, the idea of de novo review is overwhelming the more specialized an issue is,” Bressman said.

Circuit Splits

Before the high court, those defending Chevron and those fighting it have argued their preferred outcome would create more consistency across the legal system.

US Solicitor General Elizabeth Prelogar told the justices at the Jan. 17 argument that overruling Chevron “will just open up a world where there is a lot of indeterminacy and inconsistency in how judges are applying the principles in a case of ambiguity.”

Paul Clement, an attorney for the fisheries, however, told the court that overturning Chevron “would be improving stability.”

Without agency deference in these cases, Neitzel predicted circuit courts may reverse lower courts more often, bringing about “greater lack of predictability in the courts of appeals and the lower courts.”

Grimm said he would anticipate more division between appeals courts if Chevron were to be overturned, since different judges would have more leeway to interpret statutes for themselves.

“You will get circuit splits,” Grimm said. “This is not going to settle litigation so it doesn’t continue. It’s going to result in an uptick, and whether that’s a flood or just a heaping helping remains to be seen.”