Does the Supreme Court Really Not Apply Chevron When It Should?

26 Pages Posted: 23 Sep 2018

See all articles by Natalie Salmanowitz

Natalie Salmanowitz

Harvard University, Law School, Students

Holger Spamann

Harvard Law School; ECGI

Date Written: September 2, 2018

Abstract

William Eskridge and Lauren Baer’s (96 GEO. L. J. 1083 (2008)) “empirical study of all 1014 Supreme Court cases between Chevron and Hamdan in which an agency interpretation of a statute was at issue” finds that “the Court does not apply the Chevron framework in nearly three-quarters of the cases where it would appear applicable.” Our reexamination of this study finds that the fraction of such cases is far lower, and indeed closer to zero. Our main methodological innovation is to infer Chevron applicability from Supreme Court litigants’ briefs rather than our own evaluation of the cases’ facts, as in Eskridge and Baer’s study. In over half the cases flagged by Eskridge and Baer, neither of the parties (nor, where applicable, the Solicitor General as amicus) cited Chevron, and in almost half of the cases within that subset, no one argued for or against deference of any kind. In most of a sample of the remaining cases, the Supreme Court either did not need to reach the Chevron issue, or actually applied it, at least in an abbreviated form.

Keywords: Chevron, deference, standard of review, statutory interpretation, administrative law, supreme court

JEL Classification: K20, K23, K40

Suggested Citation

Salmanowitz, Natalie and Spamann, Holger, Does the Supreme Court Really Not Apply Chevron When It Should? (September 2, 2018). Available at SSRN: https://ssrn.com/abstract=3243095 or http://dx.doi.org/10.2139/ssrn.3243095

Natalie Salmanowitz

Harvard University, Law School, Students ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Holger Spamann (Contact Author)

Harvard Law School ( email )

Cambridge, MA 02138
United States

ECGI ( email )

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

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