It has been one of Justice Gorsuch's signature judicial goals to overturn the Court's Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. decision and while it has taken seven years for a case to arise giving him the opportunity to persuade his colleagues to do so, the Loper case provided that opportunity (regardless of the amount of effort or lack of it required to accomplish the goal).
The concurrence sets out the issue not as one between the co-equal branches of our government but as "between individuals and the government," providing a populist gloss otherwise not mentioned in either the majority opinion or dissent (and perhaps providing a glimpse into the philosophical underpinnings of the Justice's passion for overturning Chevron). Terming the Chevron approach to be a "radically different approach" the Justice's opines that over time "the error of this approach became widely appreciated" and uses as evidence the Court's refusal to apply the doctrine since 2016 (nicely illustrating the judicial maneuver decried by Justice Kagan in her dissenting opinion of "overruling-through-enfeeblement"). As stated right at the outset, the Justice has penned his concurrence to "address why the proper application of the doctrine of stare decisis supports that course" (something the dissent vigorously opposes and the majority opinion discussed more cursorily).
The Justice begins his concurrence with his history of judicial norms, including stare decisis over time, seeking to clarify what in his view is the proper role of judges and to what extent they are (or should be) bound by prior decisions. In England, the judge's role was limited to specifically not make law (which was restricted to the King and Parliament) but to interpret it in the context of the historical consolidation of England into a single kingdom. But a judge's opinion and "the law" were not considered "one and the same thing," the Justice providing his own citation to Blackstone (1 W. Blackstone, Commentaries on the Laws of England 71 (1765)). Rather than bind later judges, an earlier judge's decision was considered to be "evidence" of what the law was which varied with the weight later judges gave them. These distinctions were also considered regarding the effect on later cases of "[d]icta, stray remarks, and digressions" (given less weight but were not considered entirely worthless) as opposed to "[a]n opinion's holding and the reasoning essential to it."
The relevance of this historical/rhetorical sojourn, according to the concurrence, is that "there are good reasons to think that the common law's understandings of judges and precedent outlined [herein] crossed the Atlantic and informed the nature of the 'judicial Power' the Constitution vests in federal courts" under Article III. These include that in addition to being drafted and adopted "against the backdrop of these understandings" there are specific passages in our Constitution that support the Justice's insight and interpretations (in his view, of course) throughout that document (which are set out in the concurring opinion). In this context is the important principle that the judiciary is a "neutral party" [that can] 'interpret and apply' the law without fear or favor in a dispute between others," citing Osborn v. Bank of United States, 9 Wheat. 738, 866 (1824) (the need thereof being consistent with the rather adversarial view of "citizens and their government" espoused at the beginning of the concurrence, rather than mere allocation of the capacity to decide between different branches of those citizens' government). And the concurrence suggests that the limited power of stare decisis in England was transported to this country due to these similarities (suggesting darkly a broader attack on established legal principles that could lead to unbridled judicial hegemony over established law). "Plucking" (or at least cherry picking) from numerous 19th Century decisions and extrajudicial statements by past statesmen (Including Abraham Lincoln) the concurrence weaves a tapestry swathed in apparent reasonableness diminishing the power of stare decisis as never being binding on future courts but rather providing evidence or guidance regarding what the later law should or could be. The Justice's conclusion from these assessments are summarized in the opinion as three "lessons":
First, "a past decision may bind the parties to a dispute, but it provides this Court no authority in future cases to depart from what the Constitution or laws of the United States ordain." This principle is supported by consideration of "flawed" decisions and when that flaw is constitutional or related to particular statutes and the Court's capacity for correction (and thus not bound by stare decisis).
Second, "[w]hile judicial decisions may not supersede or revise the Constitution or federal statutory law, they merit our 'respect as embodying the considered views of those who have come before,'" citing Ramos v. Louisiana, 590 U. S. 83, 105 (2020). A judge must "weigh his view of what the law demands against the thoughtful views of his predecessors" which are "a font of established wisdom richer than what can be found in any single judge or panel of judges." Precedent's primary power is the power to persuade later judges, the concurrence maintains. (Ironically, the principles of workability and reliance, the first of which was used by the majority to support their decision to overturn Chevron, "do not often supply reason enough on their own to abide a flawed decision" but do they provide sufficient motivation to overturn it?).
Third, "it would be a mistake to read judicial opinions like statutes" because judicial decisions "render a judgment based only on the factual record and legal arguments the parties at hand have chosen to develop" (those decisions being made before a backdrop of earlier decisions and settled law being unmentioned). The concurrence properly notes that judges must "appreciate the possibility that different facts and different legal arguments may dictate a different outcome (but unspoken is the principle that this does not imply that these differences mandate or permit changes in settled law). The concurrence, placing the blame on the innately digressive characteristic of judges, asserts that many decisions are infused with "vapours and fumes of law" (citing 2 The Works of Francis Bacon 478 (B. Montagued. 1887)) (apparently meaning dicta) that "cannot 'control the judgment in a subsequent suit,'" citing Cohens v. Virginia, 6 Wheat. 264, 399 (1821).
The upshot of these considerations in the concurrence is the judicial Goldilocks principle that there is a "just right" amount and degree of precedential authority that that earlier decisions can be given (that "sweet spot" being defined only by the decision maker to which the issue is posed). Citing Brown v. Davenport, 596 U. S. 118, 141 (2022), the Justice asserts that over reliance on stare decisis can "turn stare decisis from a tool of judicial humility into one of judicial hubris."
The concurrence applies these "lessons" to Chevron as follows:
Lesson 1, because Chevron deference contravenes the law Congress prescribed in the Administrative Procedure Act.
Lesson 2, because Chevron deference runs against mainstream currents in our law regarding the separation of powers, due process, and centuries-old interpretive rules that fortify those constitutional commitments.
Lesson 3, because to hold otherwise would effectively require us to endow stray statements in Chevron with the authority of statutory language, all while ignoring more considered language in that same decision and the teachings of experience.
The concurrence's explication of these conclusions mirror the analysis in the majority opinion (and won't be repeated here; see "Loper Bright Enterprises v. Raimondo (2024)") except to the extent they do not. Regarding the APA in Lesson 1 the concurrence is concerned that an agency can interpret a statute outside the scope of what a court has, can, or would do, and such interpretations can be changed at any time by the agency that could "effectively overrule not only their own past interpretations of a law but a court's past interpretation as well." Lesson 2 "cannot rescue Chevron deference in Justice Gorsuch's opinion because "[i]f stare decisis calls for judicial humility in the face of the written law, it also cautions us to test our present conclusions carefully against the work of our predecessors" (reiterating the arguments here and in the majority opinion regarding "how our predecessors traditionally understood the judicial role in disputes over a law's meaning"; these arguments include citations to Marbury v Madison, The Federalist, and United States v. Dickson, 15 Pet. 141, 162 (1841) (Story, J.). And again raising the possibility that a court would need to defer insofar as "the government could propound a 'reasonable' view of the law's meaning one day, a different one the next, and bind the judiciary always to its latest word" or that the Executive could override judicial precedent. Giving the Executive branch due respect does not require courts to defer wherein "by no means [can the Executive's decisions] control the action or the opinion of this court in expounding the law with reference to the rights of parties litigant before them," citing Irvine v. Marshall, 20 How. 558, 567 (1858). Justice Gorsuch's assessment of the Chevron regime is that "it did not merely depart from our precedents. More nearly, Chevron defied them."
The concurrence also sees a parallel between King George's efforts to dominate the colonial judiciary and Chevron, and the American response to the King's effort by making "considered judgment to build judicial independence into the Constitution's design [by] vest[ing] the judicial power in decisionmakers with life tenure" under Article III (as well as other bases for judicial independence). In the Justice's view, Chevron deference undermines all that (citing many of the aspects of the Chevron regime recited in the majority opinion's grounds for overturning Chevron). The opinion sees Chevron as enabling the Executive branch to "effectively judge the scope of their own lawful powers," citing Arlington v. FCC, 569 U. S. 290, 296–297 (2013). And citing Blackstone the interpretive powers granted the Executive bureaucracy echoes the capacity Blackstone warned about should "magistrates" be permitted to "discard an old meaning and assign a new one to a law's terms, all without any legislative revision" under circumstances where a "reasonable bureaucrat may change his mind year-to-year and election-to-election," thereby reducing or destroying public certainty (wherein "the people are left to guess about their legal rights and responsibilities" as a result).
Justice Gorsuch's analysis of the Chevron regime is frankly disparaging, terming the determinations of ambiguity to be something of a "Snark hunt" (some judges see it everywhere, some judges never see it) but in any case where these decisions always inure to the "benefit" of the Federal government (and the courts' assessment of whether the agency's interpretation of the statute is also fraught with ""wildly different" approaches and reached wildly different conclusions" even in similar cases, citing Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2152 (2016) (the cases before the Court on appeal illustrating this situation in the Justice's view).
The concurrence also has little use for claims that allegiance to Chevron involves reliance interests, asserting that "the whole point of Chevron deference is to upset [reliance interests]," ostensibly because "executive officials can replace one 'reasonable' interpretation with another at any time, all without any change in the law itself" (citing National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 982–983 (2005), as an example of such changes in how agencies interpret the law; tellingly that decision arose prior to any of these changes). The concurrence purports to be concerned with the effects of such changes on "ordinary people" because "sophisticated entities" (and, ominously, "their lawyers") can take steps (from "keeping up" with such changes to lobbying), illustrating the "ordinary people" example with Buffington v. McDonough involving an Air Force veteran injured in the line of duty that fell afoul of regulations ("self-serving," according to the Justice) involving disability benefits. The concurrence asserts that the government used Chevron to convince a court that the Department of Defense's interpretation of the statute resulting in the loss of was reasonable (it was not sufficiently unreasonable for the Court to grant certiorari, apparently). The Justice also includes the story of a case in which he presided at the appellate court in which the Board of Immigration Appeals overturned an earlier interpretation of a rule to the detriment of immigrants who had relied on it (other examples among the "so many" are further cited in the opinion). The concurrence pits "the Constitution, the APA, and our longstanding precedents" against government claims that Chevron deference "has become a 'fundamenta[l] . . . ground rul[e] for how all three branches of the government are operating together,'" further illustrating the fundamentally adversarial tone of the concurrence (and to a lesser degree the majority opinion).
The concurrence also characterizes Chevron as "a counter-Marbury revolution, one at war with the APA, time honored precedents, and so much surrounding law" that is the result of "endow[ing] a stray passage in a judicial decision with extraordinary authority." In Chevron, a "bare quorum" of the Chevron Court (the same quorum reaching the majority's decision) affirmed the Environmental Protection Agency's definition of the term "stationary sources." According to the concurrence, from "bits and pieces" of this decision arose the Chevron analytical regime that the concurrence and majority opinions so mightily complain about, wherein much of these bits and pieces of legal analysis not arising from positions taken by the government (and of course not taking into account the majority's and concurrence's concerns regarding contrary considerations under the APA).
The concurrence attempts to normalize the disregard for stare decisis in the Court's overthrow of Chevron by first "blaming" deceased former Justice Scalia for promoting the Chevron regime in NLRB v. Food & Commercial Workers, 484 U.S. 112, 133–134 (1987), and then, acting like a repentant apostate losing faith with its consequences and arguing for the Court to reconsider it in Northwest Environmental Defense Center, 568 U.S. 597, 617–618, 621 (2013), and Perez v. Mortgage Bankers Assn., 575 U.S. 92, 109–110 (2015). The concurrence notes that several current members of the Court began to show similar reservations, so much so that the Chevron decision was effectively ended (by what Justice Kagan's dissent terms "overruling-through-enfeeblement") until this case raised the opportunity to, in Justice Gorsuch's words, "place[] a tombstone on Chevron no one can miss."
Ultimately, the concurrence bases its justification for overturning Chevron as an opportunity to correct mistakes, and certainly there is an argument to be made that if there is a Court where it can be inappropriate to use stare decisis as a guiding principle (insofar as it prevents mistake correction) it is the Supreme Court (see "Alternative Reasoning for Supreme Court's Life Sciences Subject Matter Eligibility Jurisprudence"). But that aspect of the Court's power under Article III comes with the need for due consideration of the consequences, something apparently understood by the dissent more readily than either the majority or the concurrence, for whom it appears that correcting doctrinal error is more important that (potentially) throwing into chaos how the laws enacted by Congress are executed (and inflating the powers of unelected judges to counter the policies of their elected officials). This decision creates another governance experiment in a system whose very existence is an experiment. If it fails during the tenure of any of the Justices who concurred with this decision it can be hoped that in their turn they will have the "judicial humility" to admit their mistakes.
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