In a recent Law and Liberty post, Christopher J. Walker comes to the defense of Chevron deference with a barrelful of statistics. His numbers show that liberal and conservative judges tend to be in greater accord “when they apply the Chevron deference framework” than when they do not. And from this, he concludes that “the Chevron Court’s objective to reduce partisan judicial decision-making has been quite effective.”
But, of course, judges disagree less when the Supreme Court bars them from exercising their independent judgment about what the law is. Anyone, of almost any political perspective, would disagree less when prevented from reaching a decision about what the law requires.
And it is inevitable that the judges disagree less when they are instructed to be biased in favor of the government’s legal position. When judges are told by the highest court that they ordinarily must be pre-committed to the government’s arguments about what the law is, then it is hardly surprising that they tend to have diminished opportunities for disagreement. Put another way, it is obvious that judicial disagreement about government interpretations will decline when judges feel compelled to favor the government’s interpretations.
Rather than reveal diminished politicization, Walker’s numbers provide strong evidence of diminished judicial independence and even of institutionalized judicial bias. That is, his research actually proves just how much judicial bias Chevron creates in favor of the government—not how much judicial bias it reduces.
The Caledonian Chieftain Calogacus famously complained about the Romans that “they make a desert and call it peace.” More mildly, one might protest that Chevron interferes with independent judicial judgment, and Walker calls it nonpartisanship.
If judges are genuinely interested in lessening conflict in our society, they need to remember Locke’s admonition that when individuals cannot find an indifferent judge on earth, they are apt to make an appeal to God. Whatever the merits of Locke’s reasoning on behalf of revolution, he was surely correct in recognizing the probability of discontent when individuals cannot have recourse to unbiased judges.
Judges (and academics) need to wrestle with the realities of how Chevron bias and other administrative power is rapidly delegitimizing our government and creating a profound alienation. Rather than try to defend the indefensible, they need to face up to the dangers of governing by executive command, and how judicial subservience to such governance twists the very office of a judge.
Remember what Chevron does. It requires the judges to follow agency interpretations of law in place of the law of the land. It requires the judges to defer to executive interpretations and thus abandon their independent judgment. And where the government is a party, Chevron pre-commits the judges in favor of the legal position of one of the parties, in violation of the due process of law. Chevron deference is Chevron bias.
Walker defends Chevron by presenting false alternatives—by suggesting a choice between judicial activism and judicial restraint. There are some (including me), he says, who “encourage courts to actively engage in checking the actions of the political branches,” and some (including Adrian Vermeule) who argue that “because federal courts are not democratically accountable, they should exercise judicial restraint, embrace the ‘passive virtues’ when possible, and otherwise adopt a minimalist and deferential approach to judicial review of actions by the political branches.”
How accurate is it to associate me and the other critics of Chevron with judicial activism? Walker himself seems to recognize that he may be going too far, for he says that we want the courts “actively” to engage in checking the political branches—thus hinting at judicial activism without actually using the word.
In fact, my view (which is amply on record) is that judges have a duty of judgment. To be precise, they have a duty to exercise their own independent judgment in accord with the law of the land. This is the core of their very office. Far from anything remotely resembling activism, it is a matter of judgment or understanding. It is what Justice Marshall alluded to when, in Marbury v. Madison (1803), he said: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.”
This duty of judges to exercise their own independent judgment stands in sharp contrast to any exertion of judicial will, and on this basis it is difficult to draw much of a distinction between judicial activism against the political branches and judicial restraint on their behalf. In either direction, these paths depart from the judges’ duty of independent judgment.
It is sad when apologists for administrative power misstate the positions of those with whom they disagree. And Walker is not as egregious in this as some of his fellow travelers. But it is necessary to state very bluntly that Americans do not face a simplistic choice between judicial activism and judicial restraint.
If that were the choice, then, yes, we would have to give up on the Constitution and submit to either the will of the political branches or the will the judges.
But we have another choice, for the very office of a judge is to exercise his or her own judgment, in accord with the law of the land. This duty is the foundation of what is sometimes called “judicial review,” and if judges stray far from it, they will have more to worry about than Chevron.
In sum, Walker’s statistics show the opposite of what he claims—not diminished partisanship, but diminished judicial independence. And he cannot justify a judicial abandonment of independent judgment by suggesting that we must choose between judicial activism and judicial restraint.