At Civitas Outlook, Aaron Nielson: Getting Right With Scalia. From the introduction:
At SCOTUSBlog, Richard Re offers the provocative take that the Supreme Court is not true to the late Justice Antonin Scalia’s legacy [ed.: noted here]. He acknowledges that Scalia is invoked favorably by all the Justices, and that “[l]egal culture remains transformed by the legal movement he helped spearhead, as evidenced by the prevalence of textualism and originalism.” Yet he claims that “the surface celebration masks a deeper ambivalence and even repudiation,” and that “some of Scalia’s signature positions have been outright rejected by the justices who carry his banner.”
Re is a sharp observer of the Court, but I think he is mistaken. I’m going to focus on administrative law, but I have doubts about all his examples. …
Specifically on the Court’s overruling of the Chevron doctrine:
Re begins his analysis by noting that the Court overruled Chevron deference (that is, the idea that courts should defer to an agency’s reasonable interpretation of ambiguous statutory language) in Loper Bright v. Raimondo. Re observes that Scalia was a prominent supporter of such deference, “[y]et every conservative justice repudiated Chevron.”
Re’s account, however, downplays a key point: By the time Scalia was done on the Court, it was an open secret that he had turned on Chevron. Adam White explained this development a decade ago. At first, Scalia supported Chevron. Part of the reason, though, was that his version of Chevron was remarkably non-deferential. As Richard Pierce explains, “Justice Scalia’s consistent support for the highly deferential Chevron doctrine seems at first to be a poor fit with empirical studies of Justice Scalia’s patterns of decisions in administrative law cases. Justice Scalia voted to uphold agency actions less frequently than any other Justice.” Why is that? Scalia’s textualism meant that “he would rarely defer to an agency interpretation of a statute under Chevron because he rarely sees ambiguities in statutory texts.” To say that Scalia was a big supporter of Chevron is only partially correct; he advocated deference only in the very rare case where there was (by his textualist lights) ambiguity.
Scalia, moreover, eventually backed away even from that limited version of Chevron, especially as the doctrine metastasized over time. In 2015, Scalia wrote that “[h]eedless of the original design of the [Administrative Procedure Act], we have developed an elaborate law of deference to agencies’ interpretations of statutes and regulations,” and without even “mentioning [the APA’s] directive that the ‘reviewing court … interpret … statutory provisions,’ we have held that agencies may authoritatively resolve ambiguities in statutes.” Scalia cited Chevron as an example of such “heedless[]” disregard for the APA.
What’s more, the reason the Court gave in Loper Bright for overruling Chevron is quintessentially Scalia. The Court emphasized that Chevron is inconsistent with the APA’s language: “[B]y directing courts to ‘interpret constitutional and statutory provisions’ without differentiating between the two, Section 706 makes clear that agency interpretations of statutes—like agency interpretations of the Constitution —are not entitled to deference.” Of course, no one did more than Scalia to bring textualism to the Court. The idea that the modern Court’s commitment to textualism threatens Scalia’s legacy should seem upside down, because it is.
Re acknowledges much of this counterevidence but says that “[i]f Scalia had actually thrown overboard his decades of support for Chevron deference, that result would have diminished his legacy by striking at its core: a demand for intellectual integrity, independent of party politics.” But the problem with Chevron was it was bad law. Scalia’s initial support for Chevron was the mistake—not his reconsidered view. Re apparently thinks the explanation for Chevron’s demise is “party politics,” but I am unconvinced. My 2007 clerkship interview with Judge Janice Rogers Brown focused on why Chevron was bad law and conflicted with the APA. My generation—a generation that grew up reading Scalia—recognized the obvious mismatch between Chevron and textualism. The Court saw the problem too and thus eventually tossed the doctrine aside as an anti-textual mistake.
One of Scalia’s best qualities was a willingness to admit error. As he once put it, “[a]s for my own culpability” in a past mistake of the Court, “I must accept that and will take it with me to the grave. But its irrelevance to my vote in the present case has been well expressed by Justice Jackson …: ‘I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.’” No one can know for sure how he would have voted in Loper Bright. What makes Scalia’s legacy so powerful, however, is that we do know how he would evaluate the textual case against Chevron: by reading it, by thinking about it, and by forming his own mind.
And in conclusion:
Certainly, some might prefer Re’s version of Scalia to the real one. Re’s version seems more literalist, more categorical, and less nuanced. In a word, Re’s version is more rigid. But although Scalia loved bright lines, the real flesh and blood Scalia was never as wooden as Re’s version of him. While I can’t give definitive evidence, I’m confident that Scalia would not have wanted his colleagues to worry too much about what he would have thought anyway. Instead, he would want them to do their best to get the law right by focusing on text and history, while acting with courage and intellectual honesty. That approach to the law, rather than any case or doctrine, is Scalia’s true legacy.
(As noted earlier, Josh Blackman also had a critical response to Re;’s essay.)
Posted at 6:09 AM