Justice Neil Gorsuch is not a fan of Chevron deference. As a federal appellate judge, Gorsuch questioned the wisdom of deferring to federal regulatory agencies' interpretations of the statutes they are tasked to administer.
It turns out Justice Gorsuch was not alone among appellate judges. According to a newly released survey of over three-dozen federal appellate judges, quite a few are skeptical of Chevron deference, and such views appear to be most prevalent among those appellate judges who, like Gorsuch, sit outside of the Beltway.
That other judges are skeptical of Chevron deference is but one of the interesting findings from the survey of 42 sitting federal appellate judges conducted by Professor Abbe Gluck and former judge Richard Posner, just published in the Harvard Law Review. The focus of the survey is how federal appellate judges approach questions of statutory interpretation. While there is ample work examining and critiquing how Supreme Court justices interpret statutes, far less attention has focused on the methods that predominate in lower federal courts, even though lower courts are where the vast majority of statutory interpretation cases will be resolved.
Here is how Gluck and Posner summarize their findings—which they characterize as "themes" given the necessarily small sample size:
First, what divides judges is not what academics and judges think divides judges. None of the judges is a "textualist" in the extreme sense of that word, or even in the version of textualism that was practiced by Justice Scalia. Very few judges told us they read the entire statute, or even begin their analysis of statutory cases with the text of the statute. All of the judges use legislative history. Dictionaries are mostly disfavored. Even when asked to provide one word to describe their interpretive approaches, not one judge was willing to self-describe as "textualist" without qualification. Even the text-centric judges described themselves in such terms as "textualist-pragmatist" or "textualist-contextualist." Our findings reveal the academic cliché de mode — "we are all textualists now" — to be an overstatement. At the other end of the spectrum, however, there were no extreme purposivists either, in the sense of the purposivism that has been textualism's foil. No judge stated that purpose was a more important tool than statutory text, and only one judge claimed to begin analysis of a statutory case with the statute's purpose. Even those judges who emphasized the importance of purpose as an interpretive tool made clear they still would not use purpose to push a statute's interpretation beyond the limits of its text. And when it comes to tools of decision, the biggest divisions among the judges interviewed had nothing to do with text, legislative history, or canons — the topics that dominate and divide Supreme Court opinions and academic discourse. Also, no significant differences could be found simply by looking at the political party of the President who had appointed the judge, or at other personal factors such as the judge's gender or race, at least based on our limited sample. Among the judges we interviewed, the greatest divisions resulted from the three factors that we already have introduced and now further detail: the judge's age, whether he or she sits on the D.C. Circuit, and prior experience working on Capitol Hill. These factors have received almost no theoretical attention
Among the judges interviewed by Gluck and Posner, younger judges tended to be more "rule-oriented" in their approach to statutory inerpretation and more reliant on canons of construction. Older judges, on the other hand, "were more forthright about the quasi-legislative activity that statutory interpretation by judges entails, and discussed openly whether gaps in statutes could be understood as delegation by Congress to the courts." Whether judges had experience in other branches of government also appeared to have a significant influence on their approach to statutory interpretation.
On the question of Chevron deference, Gluck and Posner find ample skepticism among the judges they interviewed, particularly among those not sitting on the U.S. Court of Appeals for the D.C. Circuit, the federal appellate court in which most Chevron cases are heard. D.C. Circuit judges, on the other hand, "have drunk the Chevron Kool-Aid," Gluck and Posner write.
Although every judge we interviewed told us that he or she was bound by Chevron — and all but one of the judges did apply that rule in opinions — most of the judges we interviewed do not favor the Chevron rule. Here is where we see a "D.C. Circuit effect" in our study. All but one of the D.C. Circuit judges we interviewed — who were of different generations and political parties — were admirers of Chevron deference, whereas most other judges from the other courts of appeals were decidedly anti-Chevron.
Does this skepticism of Chevron affect judicial decisions? Here's what Gluck and Posner have to say:
Because all of the judges told us that they felt bound by Chevron, we were not surprised to see little evidence of their distaste for the doctrine in opinions. Nevertheless, in our random sampling of their opinions, we found that three judges who were particularly emphatic about their dislike of Chevron did defer less than fifty percent of the time (a lower rate of deference than the others) and expressed Chevron skepticism in opinions. Another judge who told us he obeyed the doctrine but had come to question it wrote opinions that reflect that as well. . . . Even though the most vocal public critics of the rule tend to be associated with legal conservatism, our survey indicates that judicial discomfort with Chevron may be more common, and politically balanced, than one might think. To that end, it is relevant that thirty-five out of the forty-two judges we interviewed were interviewed before Justice Gorsuch's nomination. . . . The D.C. Circuit judges we spoke with are different. They accept Chevron as part of the basic wiring of how that court decides cases and generally are comfortable with it.
For myself, I've argued that Chevron needs to be contained (see also here), but I am not convinced that it should be overrule. (Auer deference, on the other hand, should definitely be abandoned.) While Gluck and Posner report finding no ideological split in how Chevron is applied, other recent research may suggest otherwise.
From the Gluck and Posner conclusion:
Our study of federal appellate judges reveals a host of topics about statutory interpretation that pose far more interesting questions than do the old debates about text versus purpose. The study also adds more context to our understanding of interpretation than what emerges from the Supreme Court's cases and most of the academic literature about the field. The last three decades' march toward a more formalist approach to interpretation seems more qualified in the lower courts, even though it indisputably has shaped the thinking of many judges. We saw in our interviews the influence of that progression in the younger judges' internalization of many of the canons of construction. But most of the judges whom we interviewed still emphatically defended their willingness to consult all available materials as the most legitimate way, in their view, to reach the right result and one consistent with Congress's intent.
In all, there's lots to chew on in this paper, and it's a must read for those who are concerned about statutory interpretation in federal courts.
UPDATE: Chris Walker comments at the "Notice & Comment." in a footnote, he highlights some of the survey's limitiations, some of which the authors acknowledged, others which are only implicit. In short, while Gluck and Posner made a sincere effort to create a representative sample, there are reasons to suspect the 42 judges they interviewed are not representative of federal appellate judges generally, and perhaps even that some judges' comments were tailored to the audience. After all, Posner's views on statutory interpretation are quite well-known, and he has not always been kind to those who take a different view. Nonetheless, this article provides a useful window into how at least some judges approach statutory interpretation.
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