Empirical Studies of Chevron

Sunstein and Miles (Chicago) have just finished Do Judges Make Regulatory Policy? An Empirical Investigation of  'Chevron'.  They find that "on the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices.  Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern. Similar patterns can be found on federal appellate courts."

This piece builds upon the numerous existing empirical studies in administrative law and of Chevron in particular (see, e.g., Schuck & Elliot, 42 Duke L.J. 984 (1989); Revesz, 76 NYU L. Rev. 1100 (2001); Kerr, 15 Yale J. Reg. 1 (1998)).  Sunstein once again confirms the impact of ideology in judicial voting, yet here Chevron deference provides a way to operationalize law.  In a way this in an effort to get at how and if law itself is used strategically.  I myself am working on a piece in one of my substantive areas of interest (environmental law) looking more closely at how Chevron deference may be used strategically (e.g., use of Chevron Step 1 versus Step 2 as compared to simply overall deference rates), while attempting to operationalize ideology (using GHP scores) and various legal variables other than Chevron.  The difficulty is in hypothesizing what legal factors impact decisions in a specific area of law (e.g., might legislative history from a liberal Congress be important in a case interpreting an environmental statute), and whether one can consistently discern from a judicial opinion whether a judge is actually invoking Chevron Step 1 or Step 2.  Then I can get at some questions such as: Would a liberal judge invoke legislative history to decide a case under Chevron Step 1 in a environmental group challenge (e.g., Sierra Club) to a less stringent EPA regulation?   

Comments

[Jeff Yates]

Shameless plug of my work here, but those interested in this topic might find my article, listed below, of interest:

"Presidential Bureaucratic Power and Supreme Court Justice Voting," Political Behavior, Vol. 21, No. 4. (Dec., 1999), pp. 349-366.

Abstract
Presidency scholars suggest that the federal bureaucracy has become "presidentialized" and that the federal agencies have become a primary tool for presidential policy implementation. However, in its review of federal agency litigation, the Supreme Court stands as an important monitor of executive bureaucratic action. Here, the conditions under which Supreme Court justices choose to facilitate executive bureaucratic action are assessed. This study tests the proposition that Supreme Court justices' voting decisions to support the president's bureaucratic agents are conditioned upon theoretically interesting extra-legal factors. Logistic regression analysis was conducted on justices' votes from Supreme Court cases involving cabinet and independent agencies during the years 1953-1995. The results indicate that Supreme Court justices' voting decisions to favorably review bureaucratic actions are influenced by extra-legal factors including attitudinal, political, and external concerns.

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Jeff Yates
Associate Professor
Department of Political Science
University of Georgia
http://www.uga.edu/pol-sci/people/yates.htm
SSRN: http://ssrn.com/author=454290
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