SPOILER ALERT: The most cited Supreme Court administrative law decision of all time is Chevron. Coming in second place, however, may be a bit more surprising: It’s the Rehnquist Court’s foundational standing decision Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). This should provide more fuel to the fiery debate on whether the signature move of the Rehnquist (and Roberts) Court is to reinvigorate the standing requirement for suing the government.
As part of the Fordham Law Review’s Chevron at 30 Symposium, my colleague Peter Shane and I have penned a foreword to introduce the excellent contributions. A draft of that foreword is here, and an excellent group of scholars have contributed to the symposium, including Kent Barnett, Jack Beermann, Jim Brudney, Abbe Gluck, Emily Hammond, Kristin Hickman, Tom Merrill, Aaron Saiger,Miriam Seifter, and Peter Strauss. I’ll blog more about the various contributions in the coming weeks once the symposium issue is published.
In the foreword Peter and I wanted to state what we thought was an obvious fact—that Chevron is the most cited administrative law decision of all time. But it turns out that, while some had made that assertion in various essays and articles, we could find no study that had attempted to quantify the citation counts for administrative law decisions. So we enlisted two terrific research assistants, Justin Nelson and Molly Werhan, to attempt to quantify the case citations.
To arrive at the conclusion that Chevron is the most cited administrative law decision of all time, we checked the citations on Westlaw for every Supreme Court decision cited in the latest edition of Jerry L Mashaw, Richard A Merrill, Peter M Shane, Elizabeth Magill, Mariano-Florentino Cuellar, Nicholas R Parrillo, Administrative Law: The American Public Law System (7th ed. 2014). Justin and Molly reviewed those cases (over 550) during two weeks in late July and August. The results for the top ten and then another twenty I thought readers would be most interested in are presented in the following table.
|Table 1. Most Cited Supreme Court Adminstrative Law Decisions|
|Rank||Case Name||Citation||Year||Total Citations||Cases||Secondary Sources|
|1||Daubert v. Merrell Dow Pharmaceuticals, Inc.||509 U.S. 579||1993||104,452||16,400||10,580|
|2||Harlow v. Fitzgerald||457 U.S. 800||1982||71,223||26,239||2,834|
|3||Chevron U.S.A., Inc. v. NRDC||467 U.S. 837||1984||67,509||13,482||11,538|
|4||Kumho Tire Co., Ltd. v. Carmichael||526 U.S. 137||1999||52,765||7,314||3,483|
|5||Lujan v. Defenders of Wildlife||504 U.S. 555||1992||48,153||13,049||4,609|
|6||Scheuer v. Rhodes||416 U.S. 232||1974||47,223||22,051||1,116|
|7||Richardson v. Perales||402 U.S. 389||1971||46,976||34,762||544|
|8||Erie Railroad Co. v. Tompkins||304 U.S. 64||1938||44,836||16,966||6,811|
|9||Anderson v. Creighton||483 U.S. 635||1987||42,852||12,922||1,321|
|10||Saucier v. Katz||533 U.S. 194||2001||41,566||15,440||827|
|11||INS v. Cardoza-Fonseca||480 U.S. 421||1987||40,075||2,812||2,161|
|12||Mathews v. Eldridge||424 U.S. 319||1976||37,938||11,289||5,183|
|23||Marbury v. Madison||5 U.S. 137||1803||22,906||3,777||10,151|
|29||Lujan v. Nat’l Wildlife Fed’n||497 U.S. 871||1990||21,094||7,470||1,239|
|30||Citizens to Preserve Overton Park, Inc. v. Volpe||401 U.S. 402||1971||20,379||5,864||2,458|
|33||Ex Parte Young||209 U.S. 123||1908||19,853||7,153||2,911|
|37||Goldberg v. Kelly||397 U.S. 254||1970||17,039||4,634||3,484|
|54||Abbott Labs. v. Gardner||387 U.S. 136||1967||13,087||4,504||1,461|
|64||Skidmore v. Swift & Co.||323 U.S. 134||1944||11,211||2,751||2,271|
|68||Vermont Yankee Nuclear Power Corp. v. NRDC||435 U.S. 519||1978||10,686||1,596||1,808|
|76||United States v. Mead Corp.||533 U.S. 218||2001||9,739||1,769||1,998|
|82||INS v. Chadha||462 U.S. 919||1983||9,263||1,021||3,673|
|103||Heckler v. Chaney||470 U.S. 821||1985||7,906||1,496||1,398|
|107||Auer v. Robbins||519 U.S. 452||1997||7,734||1,426||1,015|
|115||SEC v. Chenery Corp. (Chenery I)||318 U.S. 80||1943||6,981||2,283||858|
|134||FDA v. Brown & Williamson Tobacco Corp.||529 U.S. 120||2000||6,118||726||1,261|
|193||Nat’l Cable & Telcom. Ass’n v. Brand X Internet Servs.||545 U.S. 967||2005||4,295||486||1,082|
|195||Whitman v. Am. Trucking Ass’ns.||531 U.S. 457||2001||4,237||429||1,383|
|211||Morrison v. Olson||487 U.S. 654||1988||4,026||417||2,148|
|* For methodology, see Peter M. Shane & Christopher J. Walker, Foreword—Chevron at 30: Looking Back and Looking Forward, 83 FORDHAM L. REV. __ [*1 n.2] (2014), http://ssrn.com/abstract=2496532.|
As the table illustrates, two cases were cited more than Chevron: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); and Harlow v. Fitzgerald, 457 U.S. 800 (1982). The next two most cited cases after Chevron were Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999); and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). We did not count Daubert (or Kumho) andHarlow as administrative law cases, as Daubert and Kumho deal primarily with expert-witness qualifications and Harlow addresses qualified and absolute immunity.
There are so many fun findings depicted in the table above. I was somewhat surprised, for instance, by the relatively low citation counts and rankings for Brown & Williamson (134th), Chenery I (115th),Mead (76th), Skidmore (64th), and Vermont Yankee (68th). Even Marbury v. Madison (23rd) seems a lot lower than I would have guessed. All of this may suggest a disconnect between what academics write about and what courts and litigants actually care about. [Insert lots of caveats, including that I’m focusing on total citation counts (including court filings), not controlling for age of case, using a methodology with many, many limitations, etc.]
But, as I noted at the outset, what I find most fascinating is that the second most cited case is Lujan. It is at least fair to say that lowers courts and litigants seem to care a lot about the Court’s standing jurisprudence—more so than every other administrative law case except Chevron.