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Federal Agencies and the Supreme CourtAn Analysis of Litigation Outcomes, 1953-1988
Abstract
This article examines differences in support among federal agencies appearing before the Supreme Court. The author reports that there are significant differences in levels of support, among the agencies, when we control for agency type and the directionality of the agency's decision over time. The findings of the analysis indicate that the Supreme Court is more likely to support agencies that are independent in nature and perform a quasi-judicial role in the bureaucracy. Although executive type agencies are supported to a high degree, they are significantly less likely to be supported when compared with independent agencies. Examining the success of agencies over time, the author also finds that the success of federal agencies is dependent on the directionality of the agency's decision and the ideology of the Court. The Warren Court was more likely to support an agency when its decision was liberal than when it was conservative, whereas the Burger Court responded in an opposite manner. The conclusion from this analysis is that the policy values of the Court have a significant impact even in the area of agency policy.
... As well, the manner the judiciary has responded to the development of the modern administrative state is a function of the attitudinal foundation of the courts relative to the politics and decisions of the agencies. That is, courts generally defer to agency actions when they agree with the particular policies espoused by the bureau; conversely, they closely scrutinize agency policies when their ideologies do not so coincide (Caruson and Bitzer 2004;Humphries and Songer 1999;Sheehan 1990Sheehan , 1992). ...
... Yet, the dictates of the Supreme Court's seminal decision in Chevron U.S.A. v. Natural Resources Defense Council (1984) analogously have influenced judicial decision making (Caruson and Bitzer 2004;Cohen and Spitzer 1994;Cross and Tiller 1998;Schuck and Elliott 1990), potentially acting as a jurisprudential regime (Richards and Kritzer 2002;Kritzer and Richards 2003;Richards, Kritzer, and Smith 2003), such that attitudinal influences coexist with the demands of deference; that is, Chevron has modified the nature of judicial decision making in the courts. While much of the research on the influence of Chevron has taken place at the level of the Supreme Court (e.g., Crowley 1987;Sheehan 1990Sheehan , 1992, the foci of judicial oversight of agency action occurs in the federal Courts of Appeals (Caruson and Bitzer 2004;Cross and Tiller 1998;Humphries and Songer 1999;Smith 2004). For this reason, appeals courts represent the level of inquiry in this paper. ...
... "Of the first sixteen cases [between the ICC and railroads], the railroads won fifteen" (Carter and Harrington 1991, 9; see also Sheehan 1992). By and large, while asserting that administrative adjudication was violative of the notion of separation of powers (Rosenbloom and Carroll 1990), the judiciary, led by the Supreme Court, was enforcing laissez-faire economic policy as sacred legal doctrine (Segal and Spaeth 2002). ...
The aggrandizement of the administrative state in terms of its size and power has enabled the federal judiciary to enter the political arena regarding control of the bureaucracy. Some scholars have argued that the manner in which courts responded to this development of modern administration is a function of the ideological foundation of the courts relative to the politics and decisions of the agencies. Yet, the Supreme Court's seminal decision in Chevron mandates that courts must afford great deference to agency rule making, irrespective of the judges' ideology, thus providing for the possibility that this decision has acted as a jurisprudential regime by altering the manner in which subsequent administrative cases are evaluated. Which provides for greater influence on the Courts of Appeals, ideology or deference? Preliminary findings as reported herein suggest that Chevron did indeed shift decision making in the federal appeals courts and thus appears to have served as a jurisprudential regime in the area of administrative law. Notwithstanding, this increased tendency of courts to defer to agency action in the post-Chevron era coexists in tandem with the ideology of the courts, as it appears that both ideology and deference to administrative policy are critical to explaining this aspect of judicial behavior.
... Settlement and plaintiff victories should be more likely as the plaintiff strengthens. Within this study, litigant resources are assessed in a similar fashion to that used in the long line of previous work on this subject (see e.g., Black and Boyd, 2007;Brace and Hall, 2001;Collins, 2004;Farole, 1999;Rowland and Todd, 1991;Sheehan, 1992;Sheehan, Mishler and Songer, 1992;Songer, Sheehan and Haire, 1999;Wheeler et al., 1987). ...
... Litigant Status Difference is measured as the difference in the status of the case's original plaintiff and defendant. Within this study, litigant resources are assessed in a similar fashion to that used in the long line of previous work on this subject (see e.g., Black and Boyd, 2007;Brace and Hall, 2001;Collins, 2004;Farole, 1999;Rowland and Todd, 1991;Sheehan, 1992;Sheehan, Mishler and Songer, 1992;Songer, Sheehan and Haire, 1999;Wheeler et al., 1987), with the following ordering: ...
Over forty years after Richardson and Vines (1967) complained that federal courts have seldom been investigated as a system of interactions," the same problem continues to plague judicial scholarship, particularly concerning federal district courts. Viewed as the sum of its three essays, this dissertation project seeks to remedy this deficit. The project relies on the collection and coding of thousands of case dockets, opinions, and other court documents across multiple years (2000-2006 for essay 1, 2000-2004 for essays 2 and 3), nearly 30 district courts, and numerous issues areas that together account for about 40 percent of federal district court civil filings. The project evaluates three questions related to placing placing district courts in the judicial hierarchy. Question 1 tests the influence of case developments and actor characteristics on the disposition method (settlement, non-trial adjudication, and trial) and winning party in district court civil cases. With Question 2, I examine what features lead to a change in a case's winning party and disposition method after the case has been appealed and remanded back to the district court. Finally, Question 3 models the decision of a losing litigant to appeal to the courts of appeals and captures the implications of this decision for the outcome of the case on appeal. The result is that this project provides unprecedented insights into the development of law, the strategies of parties, the managerial role of judges, the influence of appellate judges and appellate opinions, and the overall place of federal district courts in the judicial hierarchy.
... depending on the liberal or conservative nature of those decisions. Crowley (1987) and Sheehan (1992) also looked into whether the Court treats different types of agencies more or less favorably. Crowley discovered no significant differences between the fates of agencies dealing with economic policy compared to agencies dealing with social policy. Sheehan (1992) presents evidence that the Warren, Burger, and early Rehnquist Courts were more likely to defer to independent agencies than to executive branch agencies, but emphasizes that agency type did not seem to influence the Court as much as the political direction of the agency decision (liberal or conservative). Overall, previous research on ...
... is a dummy variable coded 1 if the head of the agency can be fired by the president and 0 if the agency head cannot be fired. I determined how to code this variable by consulting the web site of each agency. This variable is meant to be a new twist on an old research question. Sheehan (1992), Crowley (1987) and others investigated whether executive branch or independent agencies fared better in the Supreme Court, and found mixed results. This variable is meant to evaluate whether agencies under the political control of the president are more or less successful at attracting support from the justices. Agency Appellant is a d ...
This article examines the effect of the relationship between the president and Supreme Court Justices on justices' voting
in administrative law cases. I evaluate Cohen and Spitzer's theory that justices tailor the pro- or antideference signal sent
to the lower courts based on their relationship with the sitting president. The results show, contrary to the theory of Cohen
and Spitzer, that justices' votes in administrative law cases are influenced by the ideology of the president under whom the
administrative decisions were made rather than by the ideology of the president in office at the time of the Court's decision.
... Its staff advocates the government's legal positions before the Supreme Court and is involved in roughly two-thirds of all cases heard by the Court in a given term-either as a direct litigant or as amicus curiae (see generally, O'Connor 1983;Pillard 2005). In its dealings with the Supreme Court, the solicitor general's office enjoys remarkable success (see, e.g., Sheehan 1992), so much so that the office is considered "the tenth justice" (Caplan 1987). This deference has been attributed to the solicitor general's office being well versed in crafting winning arguments that convey credible information upon which the justices can rely because of the office's repeated interactions with the Court (Galanter 1974;Segal 1988;Spriggs and Wahlbeck 1997;McGuire 1995). ...
In its dealings with the U.S. Supreme Court, the solicitor general’s office enjoys remarkable success. Previous accounts of the solicitor general advantage roundly explain the phenomenon as a function of the office being a source of reliable legal information to Supreme Court justices. I demonstrate, however, that macro-level analysis—the office’s overall winning percentage—misses an intricate dynamic between policy-minded justices and the executive agency. Examining every case between 1961 and 2007 in which the solicitor general’s office represented the United States before the Supreme Court, I demonstrate that “the solicitor general advantage” is present but contingent on justice-level ideological congruence. Justices who are ideologically opposed to the incumbent president treat the solicitor general’s office as an ordinary litigant, affording it no deferential treatment. Notably, adversarial voting—that is, voting behavior when faced with a political opponent—is heightened when the solicitor general’s office appears before the Court as petitioner, whereas ideological influences are nonexistent when the office appears as respondent.
... 278). Other scholars have reported similarly high win rates for executive branch agencies in the 70-85 percent range (Canon and Giles 1972;Crowley 1987;Handberg 1979;Sheehan 1992). In foreign policy, the win rate and hence overall level of deference to presidential administrations is decidedly substantial (Breyer 2016;Entin 2012;United States v. Curtis-Wright Export Corp. 1936). ...
Isaac Unah and Ryan Williams evaluate the Obama administration and its relations with the US Supreme Court. With the advice and consent of the US Senate, President Obama appointed two justices for the Supreme Court and several lower federal court judges. This chapter examined Obama’s legacy in the Supreme Court and the critical cases (e.g., campaign finance, health care, voting rights, same-sex marriage) that faced the Roberts Court. They argue that Obama’s presidency was transformative for the institution and politics of the Court. President Obama experienced both successes and failures in attempting to shape the Court in his own image, but he largely succeeded in using the Supreme Court to secure some of his biggest victories as president. At the end of the tenure, Obama was only partially successful in slowing down the aggressive rightward shift of the Court. Obama’s two relatively liberal/progressive-minded appointees, Justices Sonia Sotomayor and Elena Kagan are a counterweight to the current Court’s conservative majority. With the help of Sotomayor and Kagan, the liberal minority has slowed the Court from moving dramatically to the Right. The chapter makes that conclusion after examining the voting behavior of the Obama appointed justices compared to the justices they replaced on the Bench.
... 3 Yet the vast amount of U.S. policy making occurs through agency regulations. While scholars have long examined the determinants of when agency actions are overturned in the courts (Cohen and Spitzer 1996;Crowley 1987;Sheehan 1990Sheehan , 1992Smith 2007;Wagner 2012;Yates 2002), this literature generally does not investigate how long these actions endure before being reversed or delayed by nonjudicial actors such as Congress or agencies themselves. ...
Newly elected presidents frequently want to repeal previous administrations’ policies but face significant legislative and judicial barriers. Alternatively, they can delay the implementation of regulations promulgated by outgoing presidents to stall unfavorable outcomes. This article explores the political and organizational influences behind such delay by examining every economically significant final rule promulgated by the Obama administration during its closing year to answer whether, when, and why it was postponed under Trump. Overall, both factors are important determinants of regulatory delay, yielding mutually reinforcing effects. These findings provide insights into another dimension of presidential influence in the policy‐making process, beyond policy creation.
... Sheehan (1990) argued persuasively that this distinction was not as important as the ideological direction of the agency's position relative to the ideology of the Court. In follow up work he found that the distinction between independent and executive agency mattered, with independent agencies -often quasi-judicial in character and typically more removed from executive politicswinning more before the Court (Sheehan 1992). However, he again found that the biggest driver of agency success in such litigation was ideology -when agencies (executive or independent) were bringing cases that were antagonistic to the Court's aggregate policy preferences, they fared worse. ...
A summary and analysis of the empirical literature on courts and executives in the United States.
... The relationship between a judge's own policy preferences and his or her decision to support the agency's position has been well-documented at the level of the Supreme Court (Canon & Giles 1972; Crowley 1987; Segal & Spaeth 1993; Sheehan 1990 Sheehan , 1992), and with regard to the appellate courts (Humphries & Songer 1999). According to the Humphries and Songer study, agencies are more successful before the courts of appeals " when the policy direction of their decisions is congruent with the policy preferences of the majority of the reviewing court " (1999: 211). ...
This study seeks to expand our understanding of judicial deference to administrative agencies within the context of one particularly important legal forum - the U.S. Court of Appeals for the District of Columbia. The DC circuit functions as a key venue for administrative law cases and the opinions of the court constitute a growing body of common law in the field of administrative law. We investigate the importance of several agency-centered and judge-centered variables in explaining judicial deference to administrative agencies in cases before the DC circuit court during a twelve-year period (1985-1996). We find that an integrated model of judicial deference, combining both legal and attitudinal factors, best explains judicial deference. Like judges on so many other courts, judges on the DC circuit are politically motivated, but their political activism is tempered by agency-centered factors such as the type of case before the court, and environmental factors such as the composition of the judicial panel reviewing the case and the behavior of the Supreme Court.
... It is reasonable to expect that the justices' political attitudes, which have been repeatedly shown to influence their decisions in other policy areas such as search and seizure (Segal and Spaeth 1993), capital punishment (George and Epstein 1992), establishment clause (Ignagni 1994), and freedom of expression (Richards and Kritzer 2002), will also influence their decisions in cases involving administrative and regulatory decisions. In this stream of scholarship, Sheehan (1992) demonstrates that the Warren Court was significantly more likely to uphold liberal agency decisions than conservative ones, while the Burger and Rehnquist Courts were significantly more likely to uphold conservative decisions. Sheehan's 1990 study provides an illustration of both the strengths and limits of this explanation. ...
In this article we evaluate whether the Supreme Court's much-discussed decision in Chevron v Natural Resources Defense Council (1984) signaled a lasting difference in how the justices decide administrative law cases, by comparing and testing the predictions of three distinct theories of Supreme Court behavior. The legal model predicts an increase in deference to administrative agencies. This prediction is shared by the jurisprudential regime model, which also predicts that the justices evaluate key case factors differently before and after Chevron. The attitudinal model predicts no change in the justices’ behavior as a result of Chevron. Although we find that attitudes matter, the fact that we also find support for the legal and jurisprudential regime models undermines the assertion of the attitudinal model that law cannot explain Supreme Court votes on the merits.
... Empirical studies of federal administrative agencies before the Supreme Court, dating back as far as 50 years, show that agencies are one of the most successful litigants with average success rates of at least 70 percent (Canon and Giles 1972;Crowley 1987;Handberg 1979;Pritchett 1948;Sheehan 1990Sheehan , 1992Tanenhaus 1960). Some commentators suggest that one key to the success of agencies in court has been the Administrative Procedure Act (Tanenhaus 1960). ...
Administrative agencies play a substantial role in the formulation and implementation of national policy Central to this role is their exercise of discretion. A normative consensus exists that such discretion should be constrained by administrative deference to the rule of law. The courts of appeals are expected to insure that such discretion is constrained. The analysis reported below examines how effectively they fulfill that expectation The findings suggest that agency success is related to political considerations, with agencies being successful when their decisions are consistent with the policy preferences of the judges. However, variables that captured elements of the legal model were also related to success. Taken together, it appears that the appeals courts respond to both legal concerns and political preferences. Thus, the courts appear to fulfill the expectation that they will constrain the worst abuses of discretion by imposing the rule of law.
We explain how two landmark Supreme Court cases, Motor Vehicles Manufacturers Association of the U.S. v. State Farm Mutual Automobile Insurance Co. (1983) and Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc. (1984), have constrained congressional and presidential control of the bureaucracy. We provide an overview of these cases, and we note how the dominant theories of bureaucratic policy making in the political science literature fail to account for judicial doctrine in a meaningful way. We illustrate the implications of these cases for recent debates regarding regulatory rollbacks in the Trump administration, and we argue that bureaucratic control over the past forty years has tilted in favor of the judicial branch of American national government.
Recent attention to presidential action recognizes the legal and constitutional questions surrounding the controversial use of many of these powers. Yet, scholarly research on executive policymaking tends to ignore the role of the courts, instead focusing on presidential–congressional relations. I develop a formal theory of the president’s decision to issue a signing statement in the face of constraints from the Supreme Court. The model produces several novel predictions. First, I predict that the president is more likely to issue a signing statement when he is ideologically aligned with the Court. Second, contrary to previous literature, the president is more likely to issue a statement when his preferences are also aligned with Congress. Finally, when reviewing legislation that is constitutionally challenged, I predict that the Court is more likely to rule in favor of the president’s position when he has issued a signing statement.
Government transparency is a key component of democratic accountability. The U.S. Congress and the president have created multiple legislative avenues to facilitate executive branch transparency with the public. However, when the executive branch withholds requested information from the public, the federal judiciary has the power to determine whether agencies must release documents and information to requestors. When enforcing standards of executive branch transparency, judges must balance concerns of executive autonomy and judicial intrusion into administrative decisionmaking. While much judicial scholarship focuses on the decisionmaking on high courts, in the U.S. context, federal district courts play a key role in adjudicating transparency disputes. In this article, I examine case outcomes in disputes involving agency claims of deliberative process privilege over internal agency documents litigated between 1994 and 2004. I find that U.S. federal district courts largely defer to administrative agencies in transparency disputes. However, factors such as agency structure and the congruence between judicial and administrative agency policy preferences influence whether federal judges require executive branch officials to release requested information.
Objectives
Our objective is to assess the influence of amicus curiae briefs on judicial behavior on the U.S. Supreme Court. Our primary hypothesis is that amicus briefs have an impact on the justices across the ideological spectrum. Our secondary hypothesis is that this influence will be greater for justices nearer the ideological center.
Methods
Our analysis is confined to the Roberts Court (2005 through 2014 terms, inclusive). The unit of analysis is the justice‐vote in each of the 793 full‐opinion decisions during this 10‐term period; thus, our data set contains 7,135 observations. We employ logistic regression to test the impact of amicus filings on the ideological direction of the vote cast by each justice in each case. We control for the direction of the lower court decision, the ideological orientations of the justices, the presence of the federal government (or agency or official) as party, and the presence of the solicitor general as amicus curiae.
Results
We find statistical support for both the primary and secondary hypotheses. Amicus briefs appear to influence the justices across the ideological spectrum. The influence is somewhat greater among the more moderate justices, although the relationship between amicus influence and judicial moderation is a weak one.
Conclusions
Supreme Court justices appear to respond positively to the persuasive attempts of amici. This impact is most noticeable for the justices in the middle of the Court—those who tend to be most influential in steering the Court's decision making.
In contrast to research focused on presidential–congressional relations, this article explores the ways in which the president strategically accounts for the courts when deciding how to best influence policy implementation. I argue that as the courts become more ideologically distant from the president and thus more likely to strike down administrative actions, agencies engage in less rulemaking while the president issues more executive orders to supplement agencies' authority to act. An empirical analysis of federal macro-level data as well as issue-specific data on labor and environmental policy yields support for the theory's hypotheses.
This research analyzes the extent to which the U.S. Supreme Court votes to support the position of the United States in cases where the government is a party to the litigation. This study considers the relationship between the Solicitor General's Office and the U.S. Supreme Court. The Solicitor General has the unique position of being the representative of the Executive Branch and the U.S. government before the Supreme Court. While a great deal of research has looked at the Solicitor General's success as a "friend of the court," far less has considered this relationship when the U.S. is a direct party in the litigation. This research investigates the success rate of the Solicitor General's Office in these cases. We find that there is considerable variation in the U.S. government's success rate before the Court depending on the issue, Supreme Court leadership, the ideological direction of the Court and whether the U.S. approached the Court as a petitioner or respondent. This study adds to our understanding of checks and balances, separation of powers, and inter-institutional relationships between these two branches of the federal government. © Common Ground, Joseph Ignagni, Rebecca E. Deen, All Rights Reserved.
The primary focus of our research is to investigate the role of specialized courts in the formation and implementation of public policy, focusing specifically on the Court of International Trade. Our theory focuses on the institutional relationships between specialized courts and their bureaucracies. We argue that expertise and oversight responsibilities of these courts play a central role in structuring their decision making. From this theory, we develop three main hypotheses: 1) specialized courts defer less to agency decisions than do generalist courts because of their expertise, 2) decisions from executive-level bureaucracies are more likely to be overturned by specialized courts than decisions from independent regulatory commissions, and 3) case-specific factors overwhelm political factors in explaining judicial behavior in specialized courts because judges on specialized courts face a strong constraint of stare decisis, resulting from a desire not to be overturned on appeal for both reputation and career enhancement reasons. The Court of International Trade's decisions to affirm or reverse bureaucratic policies are examined using probit analysis. We show that the Court of International Trade reverses decisions from an executive-level bureaucracy more frequently than those of an independent regulatory commission. However, while the court reverses over 40% of all agency decisions, thus having a seemingly substantial impact on policy outcomes, it does not appear to be pushing U.S. trade policy significantly in either a protectionist or nonprotectionist direction. Further, political influences on judges' decision making appear to be minor.
Given the importance of the courts in monitoring agency decisions, the extent of deference they offer to agencies is very important. Thus, existing research on administrative agencies and the courts has naturally focused on the extent to which courts defer to agency decisions on the merits of legal claims. Previous scholars, however, have not systematically assessed whether deference is also achieved via the use of threshold rules. In this article, we investigate the extent to which threshold rules are raised in administrative agency litigation and explore the nature of their use. Although our analysis reveals that procedural questions of access are considered in a nontrivial number of administrative agency cases heard by the U.S. Courts of Appeals, the results do not suggest that circuit judges consistently use such rules to curb the consideration of all claims raised in a given case. In addition, circuit judges are not more likely to deny access in challenges against executive as opposed to independent or other agency types. The results do suggest, however, that both ideological considerations and litigant status may play a role in influencing circuit-judge threshold votes in this context.
Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower-level decision making over appellate court decision making in the area of administrative law.
This study finds that Congress removes court jurisdiction, and does so with increasing frequency over time. Institution-based models predict that Congress should strategically remove court review to control the judiciary's influence over policy when congressional and court preferences differ. Administrative realities suggest that jurisdiction removals may be aimed at controlling litigation, not judicial ideology. Denying courts’ review denies litigants court access, an action with ramifications for litigation driven costs, delays, and caseload pressures. Using a new database of all public laws containing jurisdiction stripping provisions from the 78th through the 108th Congresses, this study tests for relations between jurisdiction stripping and either federal case filings or ideological distances among the courts, Congress, and agencies. The findings indicate that administrative concerns related to litigation in which the government is a defendant influence jurisdiction stripping, but ideology does not.
This article examines the published opinions of the U.S. Court of Appeals for the District of Columbia Circuit—a key judicial forum for deciding administrative law appeals—to test the hypothesis that ideology is a principal element for understanding judicial control over federal agencies between 1970 and 1995. Prior studies focus on U.S. Supreme Court rulings imply, but do not directly test, the proposition that judicial deference to agencies is the product of an interactive relationship between key political variables. Using a non-additive, “integrated” model of judicial behavior, the study confirms that judicial deference is an interactive ideological decision where the court's decision to defer is conditioned upon an interaction between the panel's composition and agency policy. Ideology, though, is not the sole explanation for court behavior since other non-ideological variables contribute to deference as well. The D.C. Circuit is constrained, and defers less, by the “hard look” doctrine and landmark U.S. Supreme Court precedent. Even so, it defers more to agency rulemaking, making the type of agency proceeding at issue an important variable. Overall, these findings illustrate that circuit courts are significant sources of regulatory policy change and that they use ideology, along with other factors, to control the policy initiative of bureaucracies.
This article argues for the abolition of extraconstitutional (e.g., APA) judicial review of administrative rulemaking. It examines the justifications for such review, which I characterize as the rule of law justification, the Marbury justification, the checking justification, the dialogic justification, and the public choice justification. I scrutinize them and find that they rest on descriptively inaccurate assumptions and are each wanting. I conclude by arguing that judicial review necessarily involves political considerations that are ill-suited for the judiciary. Nor is a judicial review necessary, given the availability of congressional and executive review.
Dozens of law review authors and judges have proclaimed a Chevron Revolution in the Supreme Court's willingness to defer to agency interpretations, but few authors have examined this claim in a systematic empirical manner. Seeking a more factually grounded understanding, Professor William N. Eskridge, Jr. and Lauren Baer, Esq., conducted an empirical study of all 1014 Supreme Court cases between Chevron (1983) and Hamdan (2006) in which an agency interpretation of a statute was at issue. Eskridge and Baer conclude that there has not been a Chevron revolution, at the Supreme Court level anyway. The new deference regime associated with the Chevron decision continues to exist alongside older deference regimes, including Skidmore, Seminole Rock, Beth Israel, and Curtiss-Wright. Indeed, from the time it was handed down until the end of the 2005 term, Chevron was applied in only 8.3 percent of Supreme Court cases evaluating agency statutory interpretations. Instead, the Court has employed a continuum of deference regimes. This continuum is more complicated than the literature or the Court's own opinions suggest, and it is a continuum in which Chevron plays a modest, perhaps even minor, role. Perhaps the authors' most striking finding is that in the majority of cases - 53.6 percent of them - the Court does not apply any deference regime at all. Instead it relies on ad hoc judicial reasoning of the sort that typifies the Court's methodology in regular statutory interpretation cases. Eskridge and Baer find that neither Chevron nor the other deference regimes is applied consistently by the Supreme Court. The authors find some functional regularities, however. The Court is most likely to defer to agency interpretations when they are consistent with norms recognized by the Justices, reflect the application of genuine expertise to a statutory problem, and are pursuant to delegated lawmaking authority. Eskridge and Baer also find that almost all of the Justices vote ideologically; that is, conservative Justices are significantly more likely to agree with conservative agency interpretations, and liberal Justices are significantly more likely to agree with liberal ones. The last portion of the article applies the empirical findings to address normative questions. Based upon an examination of constitutional structure and legitimacy; the rule of law and the regnant super-statute, the APA; and institutional competence, Eskridge and Baer argue against proposals that either significantly expand or jettison the special Chevron two-step framework. The authors' main prescriptions are friendly amendments to the Court's practice and recommendations that judges rethink basic doctrines of statutory interpretation in light of the modern administrative state.
This study finds that Congress removes court jurisdiction, and does so with increasing frequency over time. Institutionally based models predict that Congress should strategically remove court review to control the judiciary's influence over policy when congressional and court preferences differ. Administrative realities suggest that jurisdiction removals may be aimed at controlling litigation, not judicial ideology. Denying courts' review denies litigants court access, an action with ramifications for litigation driven costs, delays, and caseload pressures. Using a new database of all public laws containing jurisdiction stripping provisions from the 78th through the 108th Congress, this study tests for correlations between jurisdiction stripping and either federal case filings or ideological distances among the courts, Congress, and agencies. The findings indicate that administrative concerns, particularly related to litigation in which the government is a defendant, influence jurisdiction stripping, but ideology does not.
This Article offers a comprehensive examination of the Skidmore standard for judicial review of agency legal interpretations as applied by the courts in the period since the Supreme Court revitalized Skidmore in United States v. Mead Corp. First, the Article documents an empirical study of five years worth of Skidmore applications in the federal courts of appeals. In the study, we evaluate two competing conceptions of Skidmore review - the independent judgment model and the theoretically more deferential sliding-scale model - and conclude that the appellate courts overwhelmingly follow the sliding scale approach. Also, contrary to two other, significantly more limited studies, we document that Skidmore review is highly deferential to agency interpretations of law, with agency interpretations prevailing in more than 60% of Skidmore applications. Drawing from the Skidmore applications studied, we then analyze more qualitatively how the appellate courts apply the Skidmore review standard as a sliding scale and identify where those courts are struggling to make sense of Skidmore's dictates within that model. To resolve the lower courts' difficulties, we propose re-conceptualizing Skidmore's sliding scale as balancing comparative agency expertise against the potential for agency arbitrariness. Finally, we note several burgeoning issues concerning the scope of Skidmore's applicability and offer preliminary thoughts for addressing those questions.
Presidency scholars suggest that the federal bureaucracy has become presidentialized and that the federal agencies have become a primary tool for presidential policy implementation. However, in its review of federal agency litigation, the Supreme Court stands as an important monitor of executive bureaucratic action. Here, the conditions under which Supreme Court justices choose to facilitate executive bureaucratic action are assessed. This study tests the proposition that Supreme Court justices' voting decisions to support the president's bureaucratic agents are conditioned upon theoretically interesting extra-legal factors. Logistic regression analysis was conducted on justices' votes from Supreme Court cases involving cabinet and independent agencies during the years 1953–1995. The results indicate that Supreme Court justices' voting decisions to favorably review bureaucratic actions are influenced by extra-legal factors including attitudinal, political, and external concerns.
The issues of access to the federal courts and the policy implications of recent Supreme Court decisions have been the subject of much taxonomic and doctrinal analysis, particularly in light of the pattern of retrenchment and restriction that the Burger Court has displayed. This analysis attempts to ascertain what factors have motivated the Burger Court Justices in their policy choices. Through the use of cumulative scaling we find that none of our hypothesized influences explain the access choices of the Court as a whole. The Justices, rather, march to the beat of individualized drums--a varying admixture of administrative-legal influences, political attitudes, and/or an overall access attitude. Each Justice's admixture is specified.
Joseph Tanenhaus is Associate Professor of Government at York University. He has been a Faculty Research Fellow of Social Science Research Council, 1955–1958, and has contributed numerous articles on civil rights to political science journals and law reviews.
- Canon, Bradley C.
- Sheehan, Reginald S.
Activism and restraint: Acloak for the Justices' policy preferences
- Harold J Spaeth
- Stuart Teger