Not surprisingly, at Neil Gorsuch’s confirmation hearing, the Democratic Senators didn’t succeed in getting Judge Gorsuch to reveal much about his views. Instead, Gorsuch that “if I were to start telling you which are my favorite precedents or which are my least favorite precedents or view it in that fashion, I would be tipping my hand and suggesting to litigants I already made up my mind about their cases. That’s not a fair judge.” But, Gorsuch has already done exactly that, writing an unusual concurring opinion that criticized Chevron U.S.A. Inc. v. Natural Resources Defense Council, a unanimous 1984 Supreme Court decision that has been reaffirmed many times. Gorsuch’s critique of Chevron merits a close look because it reveals a vision that is profoundly anti-democratic and that makes it exceedingly difficult to rein in large corporations.
In Gutierrez-Brizuela v. Lynch, Judge Gorsuch wrote a 23 page arguing that Chevron should be overturned. At his confirmation hearing, Gorsuch explained his actions by saying, “my job is when I see a problem to tell my boss.” I can’t help noting that only a judge who has forgotten what it’s like to have a real boss would describe the Supreme Court justices as his “bosses,” since they have no ability to affect either his job tenure or his working conditions. As Eric Posner has , Gorsuch’s views on Chevron place him far outside the mainstream, and to understand why, it’s worth reviewing both the holding and the rationale for the Chevron decision. Chevron involved the validity of regulations adopted by the Environmental Protection Agency (ironically under the leadership of Gorsuch’s mother) during the Reagan Administration. The regulations at issue were challenged by environmental groups, who argued that they were inconsistent with the purposes underlying the Clean Air Act. The Court held that if a statute is silent or ambiguous with respect to a specific issue, the court should not simply impose its own construction on the statute, but instead should defer to the construction of the agency charged with administering that statute as long as the agency’s interpretation is “reasonable.” This means that sometimes the Court will uphold the agency’s construction even though the Court might have reached a different result if the question had initially arisen in a judicial proceeding.