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Who Deserves Scalia’s Mantle?

The Chevron precedent may hold the key to the future of the conservative legal movement.

Associate Justice Scalia At The US Supreme Court
Portrait of American jurist and U.S. Supreme Court Associate Justice Antonin Scalia (1936 - 2016) as he poses beside an open locker door in the Court's Robing Room, Washington DC, January 1987. (Photo by Janet Fries/Getty Images)

In 1989, five years after the Supreme Court’s decision in Chevron v. Natural Resources Defense Council, Justice Antonin Scalia began a notable lecture in support of Chevron by admonishing an audience of law students: “Administrative law is not for sissies–so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture.” Readers of Professor Thomas Merrill’s new book, The Chevron Doctrine, should likewise heed Scalia’s warning that plumbing the depths of administrative law is not a light endeavor. However, it is a crucial one for anyone who seeks to understand our national politics. The debate over Chevron is really a debate about the future of the conservative legal movement and about who can claim the mantle of Justice Scalia. 

To have an interest in contemporary American politics is to have an interest in Chevron. One cannot understand how the three branches at the federal level interact with one another without paying heed to the strong deference that courts give to administrative agencies when those agencies interpret and act on ambiguous terms within federal statutes. For example, the ambiguous term from the original Chevron case that the EPA interpreted was what constituted a “source” of air pollution. That strong deference comes as an outgrowth of the second step of Chevron’s two step formula, bequeathed by the opinion’s author, Justice John Paul Stevens. The modest first step asks if the meaning of a statute is clear or not. If the statute is clear, then courts do not allow the agency to perform their own interpretation of it. But all too often courts determine the meaning of a statute is unclear, triggering the second step of Chevron. If a statute is unclear, courts then perform an analysis of whether that agency’s interpretation was “reasonable.” That second step has been the source of controversy because of the assumption that broadly written statutes confer upon agencies power to determine the law’s meaning according to a test of mere “reasonableness.”