In Loper Bright v. Raimondo, which overturned the 40-year-old doctrine of Chevron deference (see this PubCo post), SCOTUS highlighted the continued relevance of the doctrine articulated in Skidmore v. Swift & Co., often described as a principle of appropriate “respect” for agency interpretations, but something less than deference—i.e., the court must still be persuaded. The doctrine of Chevron deference, as you know, mandated that, if a statute did not directly address the “precise question at issue” or if there was ambiguity in how to interpret the statute, courts had to accept an agency’s reasonable interpretation of a law unless it was arbitrary or manifestly contrary to the statute. In Loper Bright, SCOTUS made clear that, while Chevron deference might now be toast, courts could still, in exercising their independent judgment in determining the meaning of statutory provisions, “seek aid from the interpretations of those responsible for implementing particular statutes,” citing Skidmore. Will Skidmore be the new go-to doctrine for courts adjudicating agency regulations? Not so far, according to this new article from Bloomberg.
In Loper Bright, SCOTUS described its historical tradition of giving “great weight” to the “informed judgment of the Executive Branch.” In this context, the majority pointed to Skidmore v. Swift & Co., in which
“the Court explained that the ‘interpretations and opinions’ of the relevant agency, ‘made in pursuance of official duty’ and ‘based upon . . . specialized experience,’ ‘constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,’ even on legal questions….‘The weight of such a judgment in a particular case,’ the Court observed, would ‘depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’”
The APA incorporated that traditional understanding of the judicial function, the majority said, “under which courts must exercise independent judgment in determining the meaning of statutory provisions. In exercising such judgment, though, courts may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes.” According to SCOTUS, again citing Skidmore, these “interpretations ‘constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ consistent with the APA.”
In her dissent, Justice Elena Kagan cautioned that applying Skidmore in lieu of Chevron was still “no walk in the park. First, the majority makes clear that what is usually called Skidmore deference continues to apply….Under that decision, agency interpretations ‘constitute a body of experience and informed judgment’ that may be ‘entitled to respect.’… If the majority thinks that the same judges who argue today about where ‘ambiguity’ resides…are not going to argue tomorrow about what ‘respect’ requires, I fear it will be gravely disappointed.”
This Bloomberg article reports on a review of 20 decisions issued between June 28 and July 26 regarding agency actions that cited Loper Bright. That review showed that only one of the 20 rulings even mentioned Skidmore. And in 13 of the decisions, federal judges ruled against agency interpretations. The article floated the idea that the “absence of Skidmore in those recent decisions raises the possibility that, in practice, Loper Bright may have also sidelined that type of deference as judges forge their approaches to reviewing agency actions that treat the federal government more like it’s any other litigant.” Counsel representing Loper Bright before SCOTUS told Bloomberg that “i[i]t’s not shocking that the response to a pretty emphatic rejection of deference has been for courts to be a little bit shy about applying it under a different title or rubric….Going forward, the right way to look at it is not Skidmore deference, but Skidmore respect.”
Some commentators cited in the article expressed a different view, suggesting that judges might apply Skidmore’s basic principles even if they don’t specifically cite the case by name. Skidmore is a doctrine, one commentator observed, but it’s also just common sense. In addition, some commentators contended, “Loper Bright shouldn’t prevent the courts from giving substantial weight to agencies’ scientific and factual findings.” In Loper Bright, the majority observed, citing Skidmore, that an “agency’s ‘body of experience and informed judgment,’ among other information, at its disposal….has always been one of the factors which may give an Executive Branch interpretation particular ‘power to persuade, if lacking power to control.’” That may lead agencies, commentators suggested, to “frame questions in terms of science and technical expertise…because of the sense that courts will still be inclined to give deference on those types of questions, as opposed to purely dictionary definition-based interpretation of statutes.”
The Bloomberg review found that courts’ decisions may also turn on political perspective: “[d]istrict court decisions on requests to freeze Biden administration regulations show a partisan pattern, according to Bloomberg Law’s review. Seven of the eight rulings that paused rules were issued by Republican-appointed judges, while a Democratic appointee handed down the one ruling rejecting an injunction bid.” According to one academic cited in the article, one effect of Loper Bright was to “shift[] power to individual judges, putting the most controversial and politically fraught regulations at high risk of being axed in court….’When it’s a vanilla, run-of-the-mill, under-the-radar—but important—regulation, [she thought,] that will hum along….For all the stuff that’s politically polarizing, I think agencies will have to decide what’s the point of going through the whole notice-and-comment process if the rules are going to be struck down later.’”
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