The Roberts Court's Structural Incrementalism

136 Harv. L. Rev. F. 75 (2022)

Minnesota Legal Studies Research Paper No. 22-22

22 Pages Posted: 5 Dec 2022 Last revised: 1 Feb 2023

See all articles by Kristin E. Hickman

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Date Written: November 20, 2022

Abstract

This essay responds to Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262 (2022), which was published as part of Harvard Law Review’s annual Supreme Court issue. The essay acknowledges that the Roberts Court is more structurally formalist, more inclined to originalist and textualist methods of interpretation, and more skeptical of federal agency action than its predecessors, prompting some amount of evolution in legal doctrines governing the federal administrative state. The essay argues, however, that the recent major questions cases align with a broader pattern in Roberts Court’s jurisprudence regarding separation of powers principles, Chevron deference, and agency design. Notwithstanding lofty flights of rhetoric about the Framers, liberty, and other constitutional values, when pared down to essentials, the Roberts Court’s decisions in these areas are drawn quite narrowly, calibrated to tweak actual administrative governance only incrementally, with plenty of carve outs and caveats, and with a preference for subconstitutional solutions rather than sweeping constitutional pronouncements. For all the hype and hoopla about doctrinal change, the nondelegation doctrine is still dead, Chevron still lives, and federal government agencies soldier on with little alteration in their day-to-day functionality -- at least for now.

Keywords: administrative law, separation of powers, Roberts Court, major questions doctrine, nondelegation doctrine, Chevron deference, agency design

JEL Classification: K19, K23, K39, K49,

Suggested Citation

Hickman, Kristin E., The Roberts Court's Structural Incrementalism (November 20, 2022). 136 Harv. L. Rev. F. 75 (2022), Minnesota Legal Studies Research Paper No. 22-22, Available at SSRN: https://ssrn.com/abstract=4283154

Kristin E. Hickman (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2915 (Phone)

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