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?