Empirically Describing Chevron Deference and Statutory Interpretation in the Appellate Courts
69 Pages Posted: 27 Sep 2019 Last revised: 12 Dec 2020
Date Written: September 16, 2019
What statutory methods does an appellate court use in reviewing decisions of an administrative agency? In doing this review, are appellate judges more likely to cite to the text or legislative history when they expressly cite the Chevron two-step process versus if they apply a different deference regime? And what role does the opinion author’s race, age, gender, and prior employment at a federal agency or Congress, among other demographic attributes, play in both choice of statutory method and deference regime? This Article explores the answers to these questions using an original dataset of all 199 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (“NLRB”) decisions from 1994 through 2018.
This analysis concludes that although there are clear partisan trends in which statutory methods Democrat-majority or Republican-majority panels favor, for the most part usage does not differ statistically. Rather, courts regardless of majority party on the court, commonly use text, language canons, substantive canons, legislative history, precedent, policy, and practical considerations to achieve certain aims, such as favoring a particular method when reviewing conservative Board decisions, or when overruling such decisions, or to advance an interpretation that is ideologically consistent with that of the majority. Democrat-majority and Republican-panel differ in their propensity to rule in a pro-employee direction and they are using whatever statutory method is best suited to achieve the end goal, whether it be textual or purposive in nature.
The data also reveals that courts specifically citing and using the Chevron two-step process are more cognizant of citing and using the text, language canons, and substantive canons in the writing of the opinion than when they do not specifically cite Chevron, thus suggesting that the choice of the Chevron framework itself may play a role in influencing how judges choose statutory methods. By contrast, those who decline to apply Chevron deference or a similar “reasonableness” standard are more likely to cite legislative history and precedent, perhaps viewing these methods as a substitute to give the opinion greater legitimacy when courts decline to apply Chevron.
Further, some interesting bivariate relationships exist between choice of statutory method or deference regime and opinion-author demographic features. White authors sitting with at least one minority colleague are less likely to apply Chevron in overruling liberal Board decisions while judge-authors with congressional experience cite substantive canons more overall. Other insights based on party, race, gender, and prior educational and employment background are discussed in the Article. Although the study is of a single agency — and one of the most politically charged ones at that — it offers fresh insight into how empirical analysis can be used to look beyond the black box of statutory interpretation by federal courts to see what shapes judicial opinions. The Article’s findings also underscore the need for more research on the way that diversity influences judicial decision making on a collegial court.
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