The Stare Decisis Analyses in Dobbs and Loper Bright.

Two year ago, the Court decided Dobbs, the most important decision ever concerning stare decisis. How many times does Chief Justice Roberts cited Dobbs in Loper Bright? Zero. I suspect the Chief would prefer to pretend that Dobbs never happened. Indeed, Justice Kagan’s dissent calls out Roberts for not citing his own Dobbs concurrence, where it is directly on point!

On the other side of the balance, the most important stare decisis factor—call it the “jolt to the legal system” issue—weighs heavily against overruling Chevron. Dobbs, 597 U. S., at 357 (ROBERTS, C. J., concurring in judgment). Congress and agencies alike have relied on Chevron—have assumed its existence—in much of their work for the last 40 years.

But the failure to cite Dobbs raises questions about what is the appropriate stare decisis framework for constitutional law decisions. Roberts never calls Chevron “egregiously wrong.” He only goes so far as to say that Chevron was “fundamentally misguided” and it Chevron “gravely erred.” Much more temperate language. Instead, he goes back to Knick and Janus:

Stare decisis is not an “inexorable command,” Payne v. Tennessee, 501 U. S. 808, 828 (1991), and the stare decisis considerations most relevant here—”the quality of [the precedent's] reasoning, the workability of the rule it established, . . . and reliance on the decision,” Knick v. Township of Scott, 588 U. S. 180, 203 (2019) (quoting Janus v. State, County, and Municipal Employees, 585 U. S. 878, 917 (2018))—all weigh in favor of letting Chevron go.

Chief Justice Roberts takes a page from the stare decisis analysis in Janus: a “crumbling precedent” that has been whittled away is on a shaky foundation:

This Court, for its part, has not deferred to an agency interpretation under Chevron since 2016. See Cuozzo, 579 U. S., at 280 (most recent occasion). But Chevron remains on the books. So litigants must continue to wrestle with it, and lower courts—bound by even our crumbling precedents, see Agostini v. Felton, 521 U. S. 203, 238 (1997)—understandably continue to apply it.

The experience of the last 40 years has thus done little to rehabilitate Chevron.

Still, even though Dobbs was not cited, there are overlaps with that case.

Dobbs explained that the Court had, over the decades, distorted other areas of the law to account for Roe. I referred to these cases as the epicycles of Roe. In Loper Bright, Chief Justice Roberts identifies various ways that the Court has justified the “fiction” of Chevron. He observed that the Court has “spent the better part of four decades imposing one limitation on Chevron after another, pruning its presumption…” Roberts identified “many refinements we have made in an effort to match Chevron‘s presumption to reality.”

First, United States v. Mead (2001) established a “step zero” if an interpretation was not intended to carry the “force of law.” Second, Encino Motorcars (2016) asked if a regulation is “procedurally defect.” Third, under Adams Fruit, the Court does not apply Chevron to “agency interpretations of judicial review provisions.” Fourth, the Court also does not apply Chevron “to statutory schemes not administered by the agency seeking deference” under Epic Systems.

Fifth, Roberts flags an important, and unresolved issue–the applicability of Chevron to criminal laws. In Garland v. Cargill, the Court found that the statute unambiguously rejected the federal government’s new interpretation. But several courts of appeals expressly relied on Chevron to uphold the bumpstock ban. In Guedes v. ATF (2020), Justice Gorsuch dissented from the denial of certiorari, contending that Chevron had no place when interpreting a criminal statute. (In Footnote 7 of Loper Bright, Roberts observes that Guedes was abrogated by Cargill.) Roberts does not invoke the rule of lenity, which is how some members of the Fifth Circuit resolved ambiguity in statute. But he did flag the issue:

And the [Chevron] doctrine continues to spawn difficult thresholdquestions that promise to further complicate the inquiry should Chevron be retained. See, e.g., Cargill v. Garland, 57 F. 4th 447, 465–468 (CA5 2023) (plurality opinion) (May the Government waive reliance on Chevron? Does Chevron apply to agency interpretations of statutes imposing criminal penalties? Does Chevron displace the rule of lenity?), aff’d, 602 U. S. ___ (2024).

Sixth, Roberts also explained that some courts simply skip Chevron. Relatedly, the Trump administration tried to waive Chevron, even as the D.C. Circuit insisted on applying it.

Confronted with this byzantine set of preconditions and exceptions, some courts have simply bypassed Chevron, saying it makes no difference for one reason or another. And even when they do invoke Chevron, courts do not always heed the various steps and nuances of that evolving doctrine.

Seventh, Roberts identified “substantive” hurdles, in addition to the procedural hurdles. He wrote:

Most notably, Chevron does not apply if the question at issue is one of “deep ‘economic and political significance.’” King v. Burwell, 576 U. S. 473, 486 (2015).

Of course, Roberts wrote King v. Burwell. And you’ll notice there are internal quotation marks. But Roberts does not indicate where those marks come from. King cited UARG (2014), which in turn cited FDA v. Brown & Williamson Tobacco (1999). These cases are considered the grandfathers of the modern major questions doctrine. I wonder why Roberts would obfuscate the origin of the “economic and political significance” line?

In the very next sentence, Roberts cited WV v. EPA, which in turns cites Whitman:

We have instead expected Congress to delegatesuch authority “expressly” if at all, ibid., for “[e]xtraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s],’” West Virginia v. EPA, 597 U. S. 697, 723 (2022) (quoting Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001); alteration in original).

Here, at least, Roberts acknowledges that the major questions doctrine is some sort of work-around for the Chevron doctrine, which implicitly turns on the question of delegation. I see a reaffirmation of Justice Gorsuch’s WV v. EPA concurrence, but nothing to support Justice Barrett’s concurrence from Biden v. Nebraska. Yet another reason why I would have expected Barrett to write something different in Loper Bright, but she was mum here.

For all of these reasons, Roberts concludes, Chevron has become “unworkable.” Or, stated differently, it has been riddled with so many exceptions that Chevron is no longer a coherent doctrine. Just like Roe.

Because Chevron in its original, two-step form was so indeterminate and sweeping, we have instead been forced to clarify the doctrine again and again. Our attempts to do so have only added to Chevron‘s unworkability, transforming the original two-step into a dizzying breakdance. See Adams Fruit Co., 494 U. S., at 649–650; Mead, 533 U. S., at 226–227; King, 576 U. S., at 486; Encino Motorcars, 579 U. S., at 220; Epic Systems, 584 U. S., at 519–520; on and on.

“Two-step” and “dizzying breakdance.” Roberts can write. And one more great line:

At this point, all that remains of Chevron is a decaying husk with bold pretensions.

Finally, Chief Justice Roberts seeks to claim the mantle of Justice Scalia.

As an early proponent (and later critic) of Chevron recounted, courts during this period thus identified delegations of discretionary authority to agencies on a “statute-by-statute basis.” A. Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L. J. 511, 516.

Even Justice Scalia, an early champion of Chevron, came to seriously doubt whether it could be reconciled with the APA. See Perez, 575 U. S., at 109–110 (opinion concurring in judgment).

But the concept of ambiguity has always evaded meaningful definition. As Justice Scalia putthe dilemma just five years after Chevron was decided: “How clear is clear?” 1989 Duke L. J., at 521.

In Rahimi, Justice Kavanaugh went to great lengths to place Nino under the umbrella of traditionalism. Members of the Court still seem to be living in Scalia’s shadow.

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