I have recently posted on SSRN my addition the Loper Bright literature, entitled Loper Bright: Resurrecting Skidmore in a New Era, 55 Seton Hall L. Rev. 1577 (2025)(“Resurrecting Skidmore“).[1] The piece discusses the Loper–Bright-resurrected Skidmore deference regime in terms of textualism, the major questions doctrine, and stare decisis (i.e., the continuing validity of judicial Chevron-based constructions of statutes after Loper Bright).  

The piece was my contribution to the Seton Hall Law Review’s annual symposium entitled “The End of Chevron Deference: Navigating Federal Administrative Law in the Wake of Loper Bright.”  The Symposium consisted of an opening panel assessing Loper Bright’s impact on administrative law generally (“A New Era of Administrative Law”), featuring Seth Davis (Boalt Hall), Anya Bernstein (Connecticut), and me. Three other panels explored Loper Bright’s potential impact on specific fields: (1) energy and environmental policy, (2) financial markets regulation, and (3) health care and life sciences.

The Old and New Skidmore Eras

Most regular readers of this blog are quite familiar with the basics of the federal judiciary’s approach to agency interpretations of statutes.   But for readers who are not, the challenge of squaring agency interpretations of statutes with the prime judicial function of deciding questions of law is nearly as old as the Republic itself.  See, United States v. Vowell & M’Clean, 9 U.S. (5 Cranch) 368, 372 (1809).  In Skidmore v. Swift & Co., 323 U.S. 134 (1944), the Court set forth its approach as one in which it considered agency interpretations to be persuasive authority, but no more than that.  

Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), marked a sharp departure.  The Court largely supplanted Skidmore and established a regime in which agency interpretations of statues were dispositive when the statute was ambiguous.  Among the constrains on Chevron deference was the “major questions doctrine,” specifying that when a statute seemed to confer upon agencies authority of exceptional “economic and political significance,” i.e., a major question, a court should “hesitate before concluding that Congress” meant to confer such authority.  FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000).  In Loper Bright v. Raimondo, 603 U.S. 369, 144 S. Ct. 2244 (2024), the Supreme Court abandoned Chevron deference altogether, and resurrected the Skidmore’s “persuasive” deference regime as the preeminent approach to judicial consideration of agencies’ interpretations of statutes. 

My paper compares the era preceding Chevron’s ascendancy over Skidmore deference (particularly the 1960’s and 1970’s) with the new era in which Skidmore has once again assumed preeminent status.  The paper makes two points related to changes in the judiciary and Congress over that forty-year period and explains how, due to those changes, the Skidmore approach will produce different results post-2024 that it did prior to1984.

First, with regard to the judiciary, the 40-year Chevron era has coincided with the federal judiciary’s dramatically increased devotion to textualism.  As Justice Kagan said ten years ago, “we are all textualists now.”[2]  And perhaps even more importantly, judges increasingly seem to regard statutory text as dispositive, particularly given the availability of linguistic canons of construction and “plain statement” rules to assist in fixing statutory meaning. Resurrecting Skidmore, supra, at 1581-85.

Accordingly, under the resurrected Skidmore courts will be likely to accord agency interpretations much less weight than they did under Skidmore in the 1960’s and 1970’s. Justice Gorsuch has described the period as the “bygone era of statutory construction” in which courts “resort[ed] to legislative history before consulting the statute’s text and structure.”  Agency interpretations will be particularly at risk if they fail to hew closely to statutory text and judicially‑crafted “plain statement” canons of statutory interpretation.  And woe to the agency that fails brush up on rules of grammar, such as the rule of the last antecedent, before seeking to interpret a statute.[3]  Resurrecting Skidmore, supra, at 1586-1591.

Second, with regard to Congress, that institution has become increasingly polarized over the course of the Chevron interregnum, and thus Congress has become increasingly unable to enact legislation or revise existing statutes.  As a result, Congress is increasingly unable to fill regulatory gaps.  Such congressional languor has implications for the interaction between Skidmore deference and the major questions doctrine, which undoubtedly will survive Chevron’s demise.

I note that the Loper Bright Court’s conception of Skidmore deference (and concomitant explanation of the Chevron’s fundamental deficiency) rests on an assumption at odds with the major questions doctrine’s underlying premise.  We can use Justice Kagan’s description of the law as sometimes “running out” to illustrate the point. What should the court do, Justice Kagan asked, when the law runs out?[4]  The Court’s rejection of Chevron, and reinstatement of Skidmore, was based on the concept that “the law” never simply “runs out.”[5]  Even in the absence of a clear answer to a statutory question, there remains “law” to apply, such that interpretation is just that, interpretation, not policy-making.  That proposition directly contradicts the premise of the major questions doctrine, that in some instances the law does indeed “run out” and Congress must create “new” law to directly address “major” issues on which we would expect Congress to expressly legislate.  Resurrecting Skidmore, supra, at 1591-92.

As an aside, I agree that sometimes an interpreter should hesitate before applying broad general terms in statutes expansively to circumstances that differ significantly from what the interpreter concludes the enacting legislature envisioned, reprising arguments I set forth in Legislative History Without Legislative Intent: The Public Justification Approach to Statutory Interpretation, 60 OHIO ST. L.J. 1 (1999), accessible at Hein-on-Line and westlaw.   But this does not coincide with the major question doctrine’s recent focus on the magnitude of compliance costs, West Virginia v. EPA, 597 U.S. 697, 721-22, 142 S. Ct. 2587, 2608 (2022), or fiscal burdens assumed by the government, Nebraska v. Biden, 600 U.S. 477, 503-505, 143 S. Ct. 2355, 2374 (2023).[6]  Resurrecting Skidmore, supra, at 1592-95.

More significantly, I argue, the major questions doctrine has subtly evolved, from a focus on congressional action to congressional inaction.  The seminal major questions case, FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), concluded that FDA authority to ban tobacco products was a major question because Congress had enacted a series of statutes taking a different approach.  Congress had actually legislated, repeatedly, in a way that suggested it had not left the question to the FDA.  (Though not considered a “major questions case,” Youngstown Co. v. Sawyer, 343 U.S. 579 (1952)(commonly referred to as the Steel Seizure Case), reflects a similar approach.  Resurrecting Skidmore, supra, at 1595-1602.

Recent major question cases take Congress’ failure to act on legislative proposals as an indicator of “majorness,” greatly expanding the doctrine’s potential applicability.  As political and legislative polarization and stalemate have increased over at least the last 40 years, Congress’ failure to adopt any legislation regarding a particular controversy, i.e., congressional inaction, has become routine.  Ironically, it is Justice Antonin Scalia, perhaps the most preeminent advocate of textualism and critic of reliance upon legislative history, who emphasized the error of according significance to congressional inaction. Justice Scalia’s dissent in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 671 (1987) (Scalia, J., dissenting), was his primary disquisition on that point.

The final section of my paper addresses the question of stare decisis, an issue previously broached in this blog, see Elliot Setzer, The Narrow View of Chevron Stare Decisis, YALE J. ON REG.: NOTICE & COMMENT (Feb. 24, 2025).  In Loper Bright, the Court adopted an apparently categorical rule that Chevron-based precedents remain “good law.”  Loper Bright, supra, 603 U.S. at 412, 144 S. Ct. at 2273. I explain that this surprising approach (at odds with the Court’s assertion that Chevron represented an abdication of judicial responsibility) might have been a reaction to the Court’s more nuanced approach to Skidmore-based precedent in a Chevron world. National Cable & Telecommunications Ass’n v. Brand X, 545 U.S. 967, 982-83 (2005).  Resurrecting Skidmore, supra, at 1604.  However, I argue, the Loper Bright categorical rule is considerably less categorical than it seems. 

In particular, only Supreme Court precedents provide a dispositive judicial interpretation of federal statutes, and the Supreme Court has the power to overrule its own precedents on a case-by-case basis, despite its general adherence to the principle of statutory stare decisis.  The far more numerous Court of Appeals opinions lack any precedential effect in the Supreme Court.  And, while binding within a Circuit, Court of Appeals precedents can often be overruled by the judges of the Circuit sitting en banc, or sometimes even by a panel of Circuit judges.  Resurrecting Skidmore, supra, at 1606-09.[7]

Conclusion

In 1963, Henry J. Friendly identified the dilemma created by a rapidly changing world in which Congress had increasingly taken the law-making function away from the courts:

I . . . lament . . . that the legislator has diminished the role of the judge by occupying vast fields and then has failed to keep them ploughed . . . . [I]t matters very much if legislators, having gone so far as to stunt the law-creating role of judges, fail to keep on creating law themselves. That would have mattered even in the more nearly static and laissez-faire era in which our fathers lived; it may be fatal in an age of automation, supersonic airplanes, atomic power, and pervasive governmental concern with the affairs of men.

Henry J. Friendly, The Gap in Lawmaking—Judges Who Can’t and Legislators Who Won’t, 63 COLUM. L. REV. 787, 792 (1963)

Agencies can and often have filled the type of gaps in lawmaking about which Judge Friendly expressed concern.  (Indeed, within the 10-15 years after Judge Friendly wrote those words, Congress created a spate of new regulatory agencies.) Under the resurrected Skidmore deference doctrine, agencies are more likely to find themselves constrained in that gap-filling role than either agencies, or judges, were during the pre-1984 Chevron Era.

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[1] For those who lack access to SSRN, the piece (as well as the five other articles published as a part of the symposium) is currently also available here. 

[2] Jonathan R. Siegel, Legal Scholarship Highlight: Justice Scalia’s Textualist Legacy, SCOTUSBLOG (Nov. 14, 2017, 10:48 AM).

[3] Jamie Durling, Grammar Teachers at the Supreme Court, 35 YALE J. ON REG.: NOTICE & COMMENT (Oct. 16, 2018).  See, Lockhart v. United States, 577 U.S. 347, 351 (2016) (when a statute “include[s] a list of terms or phrases followed by a limiting clause,” under the “rule of the last antecedent,” the limiting clause “should ordinarily be read as modifying only the noun or phrase that it immediately follows”); see generally, Bernard W. Bell, Loper Bright: Resurrecting Skidmore in a New Era, 55 Seton Hall L. Rev. 1577, 1583 n.34 (2025)(comparing the frequency of references to the rule in the 2000’s and in the 1960’s and 1970’s)

[4] Loper Bright, supra, 144 S. Ct. at 2294 (Kagan, J., dissenting).  The law is more likely to “run out” as time passes following the statute’s enactment, if later legislatures fail to regularly revise the statute.  Resurrecting Skidmore, supra, 55 Seton Hall L. Rev. at 1592, 1595.

[5] Id. at 2266.

[6] As I observe in my piece, the major questions doctrine has become a continuation of a project that started in the 1970’s, exemplified by two Justice Rehnquist opinions regarding the delegation doctrine and the regulatory review process initiated by President Reagan.  Resurrecting Skidmore, supra, 55 Seton Hall L. Rev. at 1599, n.116.

[7] The Court’s decision last week in McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, slip op. at 8 n.3, 19, 2025 WL 1716136, *6 n.3, *12 (June 20, 2025), accessible here, makes even more Chevron-based interpretations subject to de-stabilization.  In McLaughlin Chiropractic, the Supreme Court construed the Hobbes Act provision channeling most review of challenges to several agencies’ regulations to the D.C. Circuit. The Court held that the Act did not preclude defendants in enforcement proceedings brought in regional courts of appeals from challenging the validity of the rules, including the agency construction of the relevant statute in crafting the rule. The Court rejected the uniform view of all Circuits that had addressed the issue, id., slip op. at 9 n.4, 2025 WL 1716136 at *17 & n.4 (Kagan, J., dissenting).