Notice & Comment

Coping with Chevron: Justice Gorsuch’s Majority and Justice Breyer’s Dissent in SAS Institute, by Nicholas R. Bednar

Neither Justice Breyer nor Justice Gorsuch are fond of the “mandatory,” two-step approach to Chevron. Shortly after the D.C. Circuit molded the two-step standard from Justice Stevens’s opinion, then-Judge Breyer argued that a mandatory version of Chevron would result in a “greater abdication of responsibility to interpret the law than seems wise.” Since joining the Court, Justice Breyer has consistently maintained that Chevron made no relevant change” to the multi-factor Skidmore test. In a similar vein, then-Judge Gorsuch once asked, “[W]hat would happen in a world without Chevron?” He replied, “The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is.” Both justices have besmirched Chevron as an affront to judicial independence—an impermissible delegation of interpretive authority to executive agencies. However, Justice Breyer and Justice Gorsuch have coped with Chevron’s continued prevalence in different ways.

The two justices’ differing approaches are on display in their opinions in SAS Institute Inc. v. Iancu. SAS Institute is remarkable, in part, because it is the first time that Justices Breyer and Gorsuch offer dueling applications of Chevron in the same case. In a previous post, Bill Burgess offered a lengthy exposition on the statutory issues in this case. The case concerns the interpretation of a statute that permits “inter partes review,” an adversarial proceeding before the Patent and Trial Board in which the agency assesses the validity of a patent’s claims.[1] The statute provides, “If an inter partes review is instituted and not dismissed under this chapter, the Patent Trial and Appeal Board shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner.” However, the Patent Office promulgated a rule providing that “the Board may authorize the review to proceed on all or some of the challenged claims and on all or some of the grounds of unpatentability asserted for each claim.” The question presented for the Court is whether the statute requires the Patent Office to review every claim challenged in an inter partes review.

Writing for a 5-4 majority, Justice Gorsuch held that the statute’s plain text requires the agency to review every challenged claim and not merely some of them. His opinion offers a strict textualist analysis. In examining the meaning of “any patent claim,” Justice Gorsuch cites the Oxford English Dictionary, noting that, when used as a “singular noun in affirmative contexts,” “any” refers to “a member of a particular group or class without distinction or limitation” and “implies every member of the class or group.” Following this rather brief interpretive analysis, Justice Gorsuch concludes with the unremarkable principle that, “[w]here a statute’s language carries a plain meaning, the duty of an administrative agency is to follow its commands as written, not to supplant those command with others it may prefer.” In reviewing the Patent Office’s defense of its regulations, Justice Gorsuch again uses textualist tools and dismisses comparisons to other provisions by suggesting that “Congress didn’t choose to pursue that known or readily available approach here.”

Throughout the bulk of his opinion, Justice Gorsuch manages to evade Chevron. When ultimately confronted with the issue, he rejects the use of Chevron because the statute is clear:

That leaves the Director to suggest that, however this Court might read the statute, he should win anyway because of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). . . . SAS replies that we might use this case as an opportunity to abandon Chevron and embrace the “impressive” body of pre-Chevron law recognizing that “‘the meaning of a statutory term’” is properly a matter for “‘judicial [rather than] administrative judgment.’” Brief for Petitioner 41 (quoting Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (CA2 1976) (Friendly, J.)).

But whether Chevron should remain is a question we may leave for another day. Even under Chevron, we owe an agency’s interpretation of the law no deference unless, after “employing traditional tools of statutory construction,” we find ourselves unable to discern Congress’s meaning. 467 U.S., at 843, n.9. And after applying traditional tools of interpretation, we are left with no uncertainty that could warrant deference. The statutory provisions before us deliver unmistakable commands.

Thus, Chevron lives to die another day.

Dissenting, Justice Breyer confronts Chevron in the first paragraph of his case, dismissing SAS Institute as a somewhat unremarkable statutory-interpretation case:

This case requires us to engage in a typical judicial exercise, construing a statute that is technical, unclear, and constitutes a minor procedural part of a larger administrative scheme. I would follow an interpretive technique that judges often use in such cases. Initially, using “traditional tools of statutory construction,” INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987), I would look to see whether the relevant statutory phrase is ambiguous or leaves a gap that Congress implicitly delegated authority to the agency to fill. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984). If so, I would look to see whether the agency’s interpretation is reasonable.

At Step One, Justice Breyer asks whether the statute “unambiguously” precludes the agency’s interpretation. After examining the statute’s text, structure, provisions, and purpose, he concludes that the statute “contains a gap.” Invoking the multi-factor approach of Skidmore, Justice Breyer states that the Court must consider the “statute’s complexity, the vast number of claims that it engenders, and the consequent need for agency expertise and administrative experience” to assess the reasonableness of the interpretation. In the end, Justice Breyer concludes that he would defer to the agency’s interpretation.

Within the justices’ opinions are two idiosyncratic approaches to Chevron—both of which purport to protect judicial independence.

Justice Gorsuch is clearly waiting to review the propriety of Chevron, suggesting that the Court may review the doctrine’s wisdom “another day.” In a subtler snub to Chevron, Justice Gorsuch cites Social Security Board v. Nierotko for the proposition that an agency’s interpretation cannot conflict with the plain language of the statute. Decided in 1946, long before the advent of Chevron, the Supreme Court held in Nierotko that the Social Security Board’s interpretation of the Labor Act “goes beyond the boundaries of administrative routine and the statutory limits.” Chevron—or any of its progeny—could be substituted for the same proposition. Instead, Justice Gorsuch appears to be nodding to the petitioner’s suggestion that the Court “embrace the ‘impressive’ body of pre-Chevron law.”

Despite Chevron’s precedential value, Justice Gorsuch’s statutory analysis shows a strong proclivity toward resolution of statutory issues by Article III judges. His interpretive analysis is reminiscent of the strong, textualist Step One advocated by the late-Justice Scalia. Justice Gorsuch’s exclusive reliance on the statutory text harkens back to Justice Scalia’s belief that textualists “find[] less often that the triggering requirement for Chevron deference exists.” Indeed, Justice Gorsuch, unlike Justice Breyer, does not even cite Chevron as the standard of review. This approach is consistent with Justice Scalia’s comment in United States v. Home Concrete & Supply, LLC, that “‘Step 1’ has never been an essential part of Chevron analysis.” Through textualism, Justice Gorsuch hopes to decide more cases at Step One (or the statutory-interpretation step before Chevron applies), thereby reducing the Court’s reliance on Chevron.

Justice Breyer’s concurrence also rejects the mandatory understanding of Chevron in favor of a looser approach:

In referring to Chevron, I do not mean that courts are to treat that case like a rigid, black-letter rule of law, instructing to always allow agencies leeway to fill every gap in every statutory provision. . . . Rather, I understand Chevron as a rule of thumb, guiding courts in an effort to respect that leeway which Congress intended the agencies to have. I recognize that Congress does not always consider such matters, but if not, courts can often implement a more general, virtually omnipresent congressional purpose—namely, the creation of a well-functioning statutory scheme—by creating a canon-like, judicially created construct, the hypothetical reasonable legislator, and asking what such legislators would likely have intended had Congress considered the question of delegating gap-filing authority to the agency.

By rejecting Chevron as a “rigid, black-letter rule of law,” Justice Breyer hopes to prevent judges from applying Chevron as a formalistic and “mandatory” form of deference. Justice Breyer’s description of Chevron as a “rule of thumb” that “guid[es] courts” is consistent with the functionalistic blended approach that Justice Breyer applies to ascertain whether deference is appropriate in a particular case. As Kristin Hickman and I have observed, this blended approach “seeks to ascertain congressional intent through an examination of the totality of the circumstances.” To be clear, Justice Breyer does not outright reject deference to agency interpretations. He has long acknowledged the role agency expertise plays in policymaking. However, in Justice Breyer’s view, this blended approach preserves judicial independence by reserving the Court’s right to defer only in those cases where the agency’s expertise warrants such deference.

As an aside, Justice Kagan joined the entirety of Justice Breyer’s dissent except for this lone paragraph. This is not too surprising. Since joining the Court, Justice Kagan has generally approached statutory interpretation in a formalistic and textualist manner, an approach that differs sharply from the blended approach of Justice Breyer.

In sum, Justice Breyer and Justice Gorsuch have found unique ways to preserve judicial authority despite the persistence (and inevitability) of Chevron. Additional context sheds light on why the two jurists have created such divergent understandings of the standard. Justice Gorsuch is a textualist and Justice Breyer is a purposivist. SAS Institute is reflective of the general disagreement between the two justices about how courts should interpret statutes. Moreover, Justice Gorsuch is a much greater opponent to the administrative state than Justice Breyer. Their opinions in Oil States Energy Services, LLC, reflect their stances on bureaucratic governance. Justice Gorsuch concluded his dissent by warning against ceding judicial authority to the political branches. In contrast, concurring with Justice Thomas’s majority opinion, Justice Breyer wrote separately to state that “the Court’s opinion should not be read to say that matters involving private rights may never be adjudicated other than by Article III courts, say, sometimes by agencies.” Even those who seek to weaken Chevron disagree about how best to weaken it. SAS Institute offers insight into the different strategies the justices are pursuing to tailor Chevron without eliminating the standard altogether.

[1] In patent law, “claims” refer to the individually numbered sections within the patent that define the protected invention. 

Nicholas Bednar is a Minnesota attorney who writes in the areas of administrative law, immigration law, and regulatory policymaking.


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