Loper Bright’s Cryptic Statement of Statutory Stare Decisis for Chevron Precedents – And Giving Chevron a Bad Rap (10/6/26)

I have just reviewed Eli Nachmany, Deference Undisturbed, 101 Notre Dame L. Rev. 985 (2026), on SSRN here. The author focuses on the rather cryptic discussion of statutory stare decisis in the Opinion of the Court (C.J. Roberts) in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 , 412 (2024), here [Preliminary Print]:

By doing so [leaving deference behind in Loper Bright], we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful—including the Clean Air Act holding of Chevron itself—are still subject to statutory stare decisis despite our change in interpretive methodology.

The actual holding of Loper Bright was that, going forward, courts must interpret statutes in agency interpretation cases de novo rather than deferring to agency interpretations as Chevron (and, really, Chevron predecessors dating to before the APA) allegedly allowed. Loper Bright's cryptic discussion of statutory stare decisis is dictum rather than a holding and seems to be something textualists often claim to avoid—permitting consequences of the interpretation to affect the interpretation of the text that, under their claimed textual preference looks only to the text, the whole text, and nothing but the text. (As Justice Kagan famously noted, textualists find a way to avoid text when they choose to, using the Major Questions Doctrine, for example, as a “get out of text free” card. West Virginia v. EPA, 597 U.S. 697, 779 (2022) (Kagan, J., dissenting).)

No one can doubt the disruption to a host of precedential statutory interpretations that would occur if Chevron deference could be litigated anew based on Loper Bright. As Nachmany discusses in the article (p. 1010), that cryptic statement was to stem the tide of the disruptive possibility.

Of course, the statement in Loper Bright is cryptic, offering nothing that helps courts in the future decide which precedents are entitled to statutory stare decisis and which are not. Perhaps it may be like pornography: courts will know it when they see it. See Jacobellis v. Ohio, 378 U.S. 184, 197 n. 2  (1964) (J. Stewart, concurring).

I discuss statutory stare decisis in my article. John A. Townsend, Loper Bright Flip Flops on Chevron Deference: A Tax Lawyer's Perspective, 79 Tax Law. 323, 391-397 (2026), SSRN here. In this posting, I offer some discussion that is in more cryptic in my article but inspired now by Nachmany’s article.

The issue that concerns me is to identify the holding of the opinion a court would use for precedent. I do not address the issue of what levels of precedent Loper Bright means its statement to apply (e.g., Supreme Court, Circuit Courts, or trial courts). At a minimum, everyone should recognize that Supreme Court adoption of agency interpretations under Chevron are precedential opinions for all judges to which the cryptic statement in Loper Bright might apply.

One thing that is certain is that the Loper Bright cryptic statement requires that the precedent in question have applied Chevron deference. I illustrate with two examples.

Example 1. The prior opinion noised about Chevron but when read fairly applied the agency interpretation as the best interpretation rather than deferring to it over an opposing best interpretation. This is a Chevron Step One case. Sometimes teasing out from the prior opinions the real basis for the holding can be difficult, but courts having the claimed facility for statutory interpretation should have some skills for interpreting potentially precedential opinions. (In this context the prior opinion is the law requiring interpretation.) As I discuss in my article, many opinions, perhaps a majority, that some view as Chevron cases really are not when analyzed closely because they found the agency interpretation the best. (See discussion in the article at 339-341, particularly at nn. 62-63.) Also, I have previously reported on significant data sets of Courts of Appeals “Chevron” holdings identified by others and found that clear Chevron holdings were rare and some likely approved best agency interpretations even though they noised about Chevron. Chevron Step Two Reasonableness and Agency Best Interpretations in Courts of Appeals (Federal Tax Procedure Blog 2/9/23), here; and Is Chevron on Life Support; Does It Matter? (Federal Tax Procedure Blog 4/2/22; 4/3/22), here. (Focus in each blog on Category 5.) This type of precedent should clearly qualify for statutory stare decisis as to the holdings that (i) the statute is not ambiguous and (ii) the agency interpretation is the best interpretation. These cases are not Chevron cases.

Example 2. The prior opinion noised about Chevron but when read fairly found (i) the statute was ambiguous (not permitting the court to determine the best or not best interpretation as between the agency interpretation and the opposing interpretation) and (ii) applied the agency interpretation as directed by Chevron (as interpreted). For the reasons I noted in discussing Example 1, the universe of this type of precedent is far smaller than many imagine. These opinions are the only ones that the Loper Bright cryptic statement of statutory stare decisis could apply to.

So, to be clear and redundant, Loper Bright’s cryptic statement about statutory stare decisis only applies to pre-Loper Bright opinions in the category described in Example 2.

I just want to clarify at this point something that be obvious: Chevron required ambiguity where the courts could not determine best and not best interpretations, meaning that courts properly applying Chevron never (i) deferred to an agency not best interpretation and (ii) on the flip side, never rejected an opposing best interpretation. That Chevron required courts to defer to an agency not best interpretation is just one myth of the ideologically driven claims in Loper Bright. Nachmany repeats that myth in his article as follows (p. 988): “their rulings often explicitly acknowledged that the best reading of the statute was not the one that the agency had chosen.” The sole authority for that statement is in footnote 10 “See Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 MICH. L. REV. 1, 71 (2017).” The Barnett-Walker article can be reviewed here. The cited page does not say what Nachmany claims. I have not reviewed the whole Barnett & Walker article to see if there is anything in it that supports Nachmany’s statement, but Loper Bright makes the same claim without citing authority for it and many have bandied the notion about for years. In my data sets of a significant number of Courts of Appeals opinions while Chevron reigned, not one court said that it was deferring to a not best agency interpretation over a best opposing interpretation. Nor could any court responsibly say that because Chevron required ambiguity, which meant that a court could not determine the best interpretation as between the agency interpretation or the opposing interpretation. Some courts, including the Supreme Court in Loper Bright, made the claim but they did so irresponsibly, probably in most cases for personal preferences, often political-type.

Added 10/6/26 8:00pm:

I attach here ChatGPT Plus's comments and rewrite of the above Blog and my comments to ChatGPT's proposed revision based on its comments. ChatGPT's proposed re-write makes basically the same points in a lot more words, but does suggest a critical correction based on Footnote 11 of Chevron. I respond to that suggested correction at the end of the attachment. I have corrected the title to eliminate falsely because on the evidence cited by ChatGPT that would be a conventional reading of Chevron repeated in Loper Bright. I think, however, that that is just Justice Stevens saying something in a footnote when he said in the text that textual ambiguity was required which means that a court cannot make the best interpretation because, well, the text is ambiguous.