Reviewing Judicial Review: Loper Bright's Mausoleum for Chevron

On June 28, 2024, the Supreme Court of the United States (SCOTUS) delivered a landmark decision in Loper Bright v Raimondo, marking a significant shift, nay homecoming, in administrative law. The Court overturned (6:3) and finally buried the longstanding 'Chevron doctrine' established in Chevron USA Inc v Natural Resources Defense Council (1984) ending a forty-year practice of judicial deference to agency interpretations of statutory ambiguities. Loper Bright has now reasserted that it is the courts, not agencies or administrative bodies, which are the final arbiters in interpreting statutes, and has reminded that legal interpretation has been “the province and duty of the judicial department for at least 221 years.” The Chevron judgment, on the other hand, had instructed judges to uphold any reasonable interpretation undertaken by an agency, of any statute administered by the same agency. 

Authoring the opinion, Chief Justice Roberts rejected Chevron's deferential approach towards agencies for statutory interpretation. This decision effectively marks the end of Chevron's interpretive framework, fulfilling Justice Gorsuch's longstanding advocacy for its mausoleum. In his dissent in Buffington v McDonough (2022), Justice Neil Gorsuch had opined that under the Chevron framework, the judiciary relinquishes its duty to provide clear guidance on individuals' rights and obligations under the law. He criticized the practice of deferring interpretive responsibilities to bureaucrats, lamenting that instead of defining the law themselves, courts effectively direct litigants to seek interpretations from government officials. Though it was also interesting to note, that the SCOTUS, over the years, exhibited reduced deference to Chevron perhaps knowing that it was the antithesis of the very concept of judicial review, firmly established in constitutional consciousness since Marbury v Madison (1803). But then Courts lower in hierarchy were not immune to its application in their judgments.

Loper Bright emphasizes that judges cannot defer to an agency's interpretation of ambiguous statutes solely due to the vagueness. It observes that Chevron's presumption is flawed because agencies lack unique expertise in resolving statutory ambiguities, a role that suitably inheres in the judiciary. The justices criticized Chevron for diverting from the principle that courts, not agencies, should determine statutory interpretations, asserting that Chevron compels courts to disregard their own judgments in favour of agency interpretations.

In the public debate surrounding Loper Bright, many commentators, though aligned with the liberal principles of the American Constitution, in our opinion wrongly assumed that the ruling reflected the conservative majority of the bench and would provide leverage to corporations to play around with regulations and consequently the lives of citizens in areas such as environmental laws. However, just as any law or its interpretation, the direct or indirect, positive or negative fallouts are inescapable. What the ruling does is merely reiterate the principles of judicial review as expected in any liberal democracy characterised by the Rule of Law. It is a shot in the arm for judicial review.

Another criticism voiced was that courts lack the expertise to analyse and interpret certain situations which should be left to experts. While at first blush this might sound an attractive proposition, it goes against the very modicum of judicial review. To take a rudimentary example, wouldn't it be inane to argue that a court cannot look into a tax dispute since a taxation expert does not sit on the bench? In fact, over-specialisation, over-involvement or over-expertise of adjudicators deeply involved in a particular subject-matter can lead to subjectivity. It is in this light perhaps that American jurist, Judge Simon Rifkind, comparing it with “primitive priestcraft”, stated that a specialised court “intensifies the seclusiveness of that branch” and “immunizes it against the refreshment of new ideas.” Closer home, the Supreme Court of India in Veer Pal Singh v Secretary, Ministry of Defence (2013) stressed that the “opinion of the experts deserves respect and not worship.”

It is a familiar and longstanding reality that the executive branch strategically interacts with the judiciary. While judicial review primarily focuses on legality, its functional purpose involves overseeing governmental authority and the decision-making process, and also keeping them within the bounds of law. Any legitimate review process conducted by the courts is certain to occasionally affect governmental spheres of influence. Obviously, that is what judicial review is all about- an interpretative take on legality of administrative action, something which Chevron turned on its head. If judicial review did not sporadically prompt such reactions from the executive wing, it would fail to serve its intended purpose effectively This is also true of India, where the Constitution promises to uphold the rule of law, and that connotes, “no one can be a judge in his own case.” Chevron permitted the replacement of the interpretation by judges with opinions of career-officers allowing administrative agencies to effectively judge their own powers. An official interpretation may vary over time or with changes in leadership, leaving the public uncertain about what new interpretations might be applied against them. This fluid approach to statutory interpretation is like the ancient laws of Caligula, which were deliberately obscure and inaccessible, posing a potential danger to the unsuspecting public.

Further, Chevron deference undermined the concept of separation of powers in two significant ways: it limited the judicial authority of courts and extended the executive power of agencies beyond their boundaries. Under Chevron, a judge was compelled to adopt an agency's interpretation of a vague provision, even if the judge believed that another interpretation was more accurate. The responsibility, as emphasized by Lord Denning in Seaford Court Estates Ltd v Asher (1949) that a judge “can and must iron out the creases” was rendered nugatory. Chevron restricted judges from using their valid judicial tools to clarify ambiguities.

Traditionally in India, judicial review focuses more on examining the procedural aspects of how a decision was made, rather than its underlying merits. This scope of judicial review reflects the broader deferential tradition of common law, particularly within the framework of parliamentary supremacy. However, the scrutiny of administrative action based on fairness, arbitrariness, reasonableness, and proportionality is occasionally invoked under the right to equality (Article 14) and reasonable restrictions on various freedoms (Article 19) of the Constitution of India. Moreover, the review of administrative action on both substantive and procedural grounds, akin to a “due process” requirement in other jurisdictions, attracts Article 21, which guarantees the right to life and personal liberty subject to procedures established by law. It is this “constitutionalisation” of Indian administrative law through the Indian Supreme Court's jurisprudence that may have a spiritual link with the ruling in Loper Bright.

The executive and judicial wings of mature democracies understand their powers and boundaries very well. But on occasions where an interpretative exercise is to be undertaken, Loper Bright firmly confers that responsibility upon judges, while also emphasizing the power of the legislative wing to make laws and consequently calling upon the legislature to make clear laws without ambiguity.

Though criticized by many quarters, the mausoleum for Chevron would, on a day not far, attract more celebrants.

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Professor (Dr) Shruti Bedi is Professor of Law & Director, University Institute of Legal Studies, Panjab University, Chandigarh. She has authored and co-edited eight books.

Both authors were the first International Fellows of the National Institute of Military Justice, Washington DC, and are co-editors of “Ability”, an upcoming anthology of landmark judgments on disability jurisprudence in India.