Administrative Law in the Roberts Court: The First Four Years

Abstract

Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law. This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access to the federal courts, covering issues such as standing, jurisdiction, causes of action, statutes of limitation, and exhaustion of administrative remedies. Part II presents the Roberts Court cases that have addressed federalism and the Supreme Court’s role in defining the relations between and the respective authority of the state and federal governments, including the imposition of Due Process requirements on states, dormant Commerce Clause limitations on states, federal preemption of state law, and the increasing role of federalism concerns as a factor in the Court’s statutory interpretation. Part III summarizes those decisions that give insights into the Robert Court’s perspective on the “proper” role of the federal courts in a tripartite federal government, covering issues such as constitutional interpretation, the Court’s interactions with Congress, federal court review of federal agency actions, and Chevron deference. While acknowledging that these decisions do not allow for any absolutely consistent principles to be discerned, this Article nevertheless concludes that a strong majority of the Justices are quite comfortable with the Court’s roles as constitutional interpreter and as constitutional mediator between governments and citizens and between states and the federal government. However, an admittedly weaker majority also otherwise prefers to defer to other branches of government - Congress and agencies - with respect to the implementation of statutes, even when doing so sacrifices some federal court prerogatives.