I was just today pointed to Perttu v. Richards,
605 U.S. ___ (6/18/25), SC here, I
was interested because, although not a case about Chevron or Loper
Bright (citing neither Chevron or Loper Bright or using the
word deference in either Chief Justice Roberts’ Opinion of the Court or Justice
Barrett’s dissent), Chief Justice Roberts says this (Slip Op. 6, of the Opinion
and p. 10 of the pdf (because the Syllabus precedes the Opinion, here):
That usual practice matters for interpreting the statute because “Congress is understood to legislate against a background of common-law adjudicatory principles . . . with an expectation that the principle[s] will apply except ‘when a statutory purpose to the contrary is evident.’”
I am interested in the quote because I am authoring an article on Loper Bright also authored by Chief Justice Roberts. I think it is commonly understood that Chevron deference had achieved the status of a common law adjudicatory principle by the time Loper Bright was decided. So, how could Chief Justice Roberts say with a straight face (or maybe a straight computer keyboard) that the Court should honor common law adjudicatory principles in Richards but not in Loper Bright? Congress was certainly legislating with Chevron as a background common law principle (as Justice Kagan notes in her Loper Bright dissent at pp. 463-464 here and Chief Justice Roberts ignores in his Opinion of the Court in Loper Bright)? (This is my reason for referring to the "small minds" aphorism in the title to this blog.)
If anyone has thoughts on this conundrum, please let me know either by comment to this article or by email to jack@tjtaxlaw.com. If appropriate and the commenter gives permission, I will acknowledge the credit in the article.
* Note that the Loper Bright page numbers and links are to the Preliminary Print (as opposed to the Slip Op.) which has “preliminary” page numbers that may change before the final U.S. volume. And, of course, the Richards quote is from the Slip Opinion not yet incorporated in a Preliminary Print.
While I do not agree with this line of reasoning, one could argue that the carveout in Loper Bright for statutory stare decisis addresses this concern.
ReplyDeleteAnonymous, thanks for your comment. I am doing an article on the world after Loper Bright, including a significant discussion of statutory stare decisis. I am not sure that statutory stare decisis solves the inconsistency on the common law issue. Chevron was common law. Loper Bright. "In truth, Chevron's justifying presumption is, as Members of this Court have often recognized, a fiction." Then it goes through a litany repeating the claim of fiction. And then it says "In all these ways, Chevron's fiction has led us to a strange place."
ReplyDeleteAfter Chevron became a thing in the public, certainly by the time Justice Scalia wrote his famous Duke LJ article in 1989, and increasingly thereafter, the world and even Congress (certainly their staffs who actually draft legislation) knew that legislation would be given Chevron deference. Chevron was no longer fiction but fact. As Justice Kagan says in dissent:
Over the last four decades, Congress has authorized or reauthorized hundreds of statutes. The drafters of those statutes knew all about Chevron. See A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 928 (fig. 2), 994 (2013). So if they had wanted a different assignment of interpretive responsibility, they would have inserted a provision to that effect.