The Rehnquist Court and Administrative Law

102 Pages Posted: 19 Nov 2004

See all articles by Michael Herz

Michael Herz

Yeshiva University - Benjamin N. Cardozo School of Law


The Rehnquist Court is generally seen as overconfident, arrogant, undeferential, and too fond of its own power. Yet in the area of administrative law, the Court frequently fails to live up to this billing. While not quite the Cowardly Lion, all ferocity on the outside and timidity on the inside, it is far from being the King of the Beasts. This article examines the Court's relatively quiet and modest administrative law jurisprudence, which contradicts, or at least dilutes, the common portrayal of the Court.

The article examines the Court's decisions concerning (a) agency interpretation and discretionary decision-making, (b) justiciability and the availability of judicial review of agency action, (c) Court's willingness, or lack thereof, to impose its own views of regulatory policy, and (d) the nondelegation doctrine. What emerges is a portrait of the Rehnquist Court that differs both from, on the one hand, that offered by commentators who are appalled by its judicial imperialism and from, on the other hand, that offered by those who celebrate its principled and independent decisionmaking. The Rehnquist Court is in many respects quite deferential, though more so to the executive than to the legislative branch. While undeniably comfortable exercising its own authority, it is less confident about judges in general, and its doctrinal commitments tend not to endorse nor indirectly to further judicial hegemony. The Court tries to separate law and politics, and is assertive as to the one and hands-off as to the other. Of course, that distinction is slippery at best and often impossible, but it is easier to make in administrative law cases than in many other parts of the docket. The Rehnquist Court proves an often timid and ultimately quite mainstream institution.

Keywords: administrative law, rehnquist, supreme court

Suggested Citation

Herz, Michael Eric, The Rehnquist Court and Administrative Law. Cardozo Legal Studies Research Paper No. 97, Available at SSRN:

Michael Eric Herz (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
United States
646-592-6444 (Phone)

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