Do Judges Make Regulatory Policy? An Empirical Investigation of 'Chevron'

56 Pages Posted: 6 Jun 2006  

Thomas J. Miles

University of Chicago - Law School

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Abstract

In the last quarter-century, the Supreme Court has legitimated agency authority to interpret regulatory legislation, above all in Chevron U.S.A., Inc v Natural Resources Defense Council, Inc, the most-cited case in modern public law. Chevron recognizes that the resolution of statutory ambiguities often requires judgments of policy; its call for judicial deference to reasonable interpretations was widely expected to have eliminated the role of policy judgments in judicial review of agency interpretations of law. But this expectation has not been realized. On the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices. Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern.

Similar patterns can be found on federal appellate courts. In lower court decisions involving the EPA and the NLRB from 1990 to 2004, Republican appointees demonstrated a greater willingness to invalidate liberal agency decisions and those of Democratic administrations. These differences are greatly amplified when Republican appointees sit with two Republican appointees and when Democratic appointees sit with two Democratic appointees.

Keywords: Chevron, Supreme Court, regulation

Suggested Citation

Miles, Thomas J. and Sunstein, Cass R., Do Judges Make Regulatory Policy? An Empirical Investigation of 'Chevron'. University of Chicago Law Review, Vol. 73, Summer 2006; U Chicago Law & Economics, Olin Working Paper No. 294. Available at SSRN: https://ssrn.com/abstract=906658

Thomas J. Miles

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

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