Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power Over Statutory Interpretation

Abstract

In statutory interpretation, judicial authority has long rested on the assumption that judges carry out Congress's policy choices rather than their own. The rise of the administrative state cast doubt on that assumption, however, by calling new attention to the leeway inherent in interpretation. Indeed, by the late-twentieth century the Supreme Court itself acknowledged that interpretation requires policy choices best left to political officials and used this observation to justify judicial deference to administrative interpretations of statutes. Having suggested that the policymaking discretion inherent in interpretation is best left to the political branches, however, the Court has never explained why judges should retain the important interpretive role they do. Judges and scholars alike have overlooked a serious tension between the Court's rationale for deference and its retention of significant interpretive authority nonetheless. This tension has been rendered quite important by recent decisions that reinforce the Court's power over agencies and raise new questions as to why the Court should retain its historical control over statutory interpretation even after acknowledging that interpretation entails more than fidelity to legislative instructions. This Article seeks to resolve this tension in the Court's jurisprudence by constructing a defense of judicial power that does not depend on judges being faithful agents of Congress. The Article defends judicial power based on the judiciary's role in the constitutional structure and its internal institutional attributes and uses this structural and institutional account of the judicial function to critique the Court's recent decisions on deference.

An earlier draft of this paper won the AALS Scholarly Paper Competition.