{"id":4082,"date":"2024-10-17T16:22:31","date_gmt":"2024-10-17T20:22:31","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4082"},"modified":"2025-12-30T11:52:15","modified_gmt":"2025-12-30T16:52:15","slug":"overruling-chevron-without-a-coherent-theory-of-statutory-interpretation-and-the-court-congress-relationship","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2024\/10\/17\/overruling-chevron-without-a-coherent-theory-of-statutory-interpretation-and-the-court-congress-relationship\/","title":{"rendered":"Overruling Chevron Without a Coherent Theory of Statutory Interpretation and the Court-Congress Relationship"},"content":{"rendered":"

Abbe R. Gluck [*]<\/a> \u00a0<\/span><\/strong><\/p>\n<\/p>\n

Abstract<\/span><\/p>\n

The Supreme Court does not have a coherent theory of the Court-Congress relationship in statutory interpretation. Nevertheless, the Court overruled <\/em>Chevron based on a theory of statutory-interpretation separation of powers that is inconsistent with much of its actual statutory-interpretation practice. Reading only <\/em>Loper Bright, one would think the Court imagines itself in an ongoing dialogue with Congress. One would think the Court is not eager to impose its own policy values on Congress. One would think the Court is interested in effectuating legislative intent and furthering interpretive predictability. One would be wrong. <\/em>Loper Bright\u2019s pronouncements were convenient for overruling <\/em>Chevron but do not reflect the Court\u2019s approach to statutory interpretation. The stakes of these inconsistent pronouncements are especially high, as <\/em>Loper Bright transfers even more interpretive authority to courts. It is more important than ever that statutory interpretation have a legitimate foundation.<\/em><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 <\/em>Loper Bright reads like a statutory-interpretation manifesto and suggests <\/em>Chevron was overruled for violating its precepts. The Court proclaims that canons of interpretation must reflect the realities of the congressional drafting process to effectuate legislative intent. It says canons are precedents and that canons are legitimate only to the extent they originated at or before the founding. The Court asserts its view of statutory meaning is originalist, fixed at the time of enactment. It argues <\/em>Chevron was uniquely unworkable.<\/em><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 Actually, no. As this Essay details, most of the Court\u2019s interpretive canons do not reflect congressional drafting practice. And contra <\/em>Loper Bright, the Court creates new canons all the time\u2014<\/em>Chevron was not an outlier. Further, despite the stare decisis discussion, the Court does not usually treat canons as precedents or as common law that can be overruled. Finally, any \u201cunworkability\u201d with <\/em>Chevron was due to the Court\u2019s own failure, across all of statutory interpretation, to create any predictable hierarchy of interpretive rules with stare decisis effect and the Court\u2019s decisions to make ambiguity trigger most of the Court\u2019s interpretive doctrines. <\/em>Chevron shared those features with many other interpretive rules only because <\/em>Chevron famously turned on the \u201ctraditional tools of statutory interpretation.\u201d The Court itself created this unworkable regime for all statutory questions. <\/em>Chevron\u2019s demise will not cure it.<\/em><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 If one takes <\/em>Loper Bright seriously, most of the Court\u2019s interpretive practices are now invalid because they fail the tests the opinion announces. It does not seem plausible that the Court intended that kind of ripple effect. This Essay explores what <\/em>Loper Bright tells us about the Court\u2019s continued lack of a coherent theory of Congress and statutory interpretation. Much is at stake: A critical part of any inquiry into statutory interpretation is what the prevailing theory tells us about the interbranch relationship. <\/em>Loper Bright is purportedly about precisely that. But to the extent that the Court\u2019s pronouncements contradict its usual practice, it obscures, rather than clarifies, any theory of statutory-interpretation separation of powers.<\/em><\/p>\n

I. Introduction<\/span><\/p>\n

The Supreme Court does not have, and has not ever had, a coherent theory of the Court-Congress relationship in statutory interpretation. Nevertheless, the Court overruled one of the most cited cases in the U.S. Reports\u2014Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.1<\/a><\/sup><\/em>467 U.S. 837 (1984).<\/span><\/em>\u2014based on a theory of statutory-interpretation separation of powers. What\u2019s more, the Court did so by deploying a theory inconsistent with much of its own, actual, ongoing, statutory-interpretation practice in most other cases. Ultimately, the opinion\u2014Loper Bright Enterprises v. Raimondo<\/em>2<\/a><\/sup>144 S. Ct. 2244 (2024).<\/span>\u2014raises more questions than it answers about the jurisprudential muddle that continues to characterize the Court\u2019s entire statutory-interpretation enterprise.<\/p>\n

If one read only Loper Bright,<\/em> one would think the Court imagines itself in an ongoing dialogue with Congress. One would think the Court is not eager to impose its own policy values on Congress. One would think the Court is interested in effectuating legislative intent and furthering interpretive predictability. One would be wrong. The Loper Bright<\/em> pronouncements were convenient for purposes of overruling Chevron,<\/em> but they do not reflect with any accuracy the current Court\u2019s own prevailing approaches to statutory interpretation. The stakes of these inconsistent judicial pronouncements are especially high: in overruling Chevron<\/em>, Loper Bright<\/em> transfers even more interpretive authority to courts, and so it is more important than ever that the Court\u2019s approach to statutory interpretation have a legitimate foundation.<\/p>\n

The opinion reads like a statutory-interpretation manifesto\u2014and suggests that Chevron<\/em> is being overruled for violating its precepts. The Court proclaims that canons of interpretation must reflect the realities of the congressional drafting process to effectuate legislative intent. It says canons are precedents and that canons are legitimate only to the extent they originated at or before the founding. The Court asserts its view of statutory meaning is originalist, fixed at the time of enactment. It argues the Chevron<\/em> doctrine was uniquely unworkable.<\/p>\n

Actually, no. As this Essay details, most of the Court\u2019s interpretive canons do not reflect congressional drafting practice, and the Court usually does not view that fact as delegitimizing. Some justices, like Justice Amy Coney Barrett, even now expressly disavow the virtue of maintaining interest in congressional practice for purposes of interpretation.3<\/a><\/sup>Amy Coney Barrett, Congressional Insiders and Outsiders<\/em>, 84 U. Chi. L. Rev.<\/span> 2193, 2204\u201305 (2017) [hereinafter Barrett, Congressional Insiders and Outsiders<\/em>].<\/span> This Court in particular has declared that legislative intent is no longer core to statutory interpretation. This Court has said instead that it is determined to displace any inquiry into what Congress meant or what Congress intended with a new focus on \u201cordinary meaning\u201d and ordinary people, rather than congressional \u201cinsiders.\u201d4<\/a><\/sup>See<\/em> id<\/em>.; infra<\/em> Part IV (collecting citations from all of the Court\u2019s textualists for this proposition).<\/span> This ordinary-meaning approach is not only inconsistent with the traditional \u201cfaithful-agent-of-the-legislature\u201d approach to statutory cases to which the Loper Bright<\/em> theory harkens back; it is also often inconsistent with the originalism Loper Bright<\/em> endorses. Ordinary people read statutes today<\/em>, not as they were understood in 1964.<\/p>\n

Indeed, contra Loper Bright<\/em>, the Supreme Court creates new canons all the time\u2014Chevron<\/em> was not an outlier in that regard, as the Court suggested. And despite the stare decisis discussion in the opinion, as this Essay will elaborate, the Court does not usually treat canons as precedents or as common law that can be overruled.5<\/a><\/sup>See infra<\/em> Parts II and 0.<\/span> As to Chevron<\/em>\u2019s \u201cunworkability,\u201d as the Court charged, any unworkability associated with Chevron <\/em>was due to the Court\u2019s own failure, across<\/em> all <\/em>of statutory interpretation, to create any predictable hierarchy of interpretive rules with stare decisis effect and the Court\u2019s decisions to make ambiguity trigger most of the Court\u2019s interpretive doctrines. Chevron<\/em> shared those features\u2014a lack of interpretive order and an ambiguity threshold\u2014with many other interpretive rules, to be sure, but only because Chevron <\/em>itself famously turned on the \u201ctraditional tools of statutory interpretation,\u201d6<\/a><\/sup>Chevron<\/em>, 467 U.S. at 843 n.9 (\u201cIf a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect\u201d).<\/span> not because of something inherent to Chevron<\/em>. The Court itself created this unworkable regime for all<\/em> statutory questions. It was not unique to Chevron,<\/em> and so Chevron<\/em>\u2019s demise will not cure it.<\/p>\n

If one takes Loper Bright<\/em>\u2019s pronouncements about statutory interpretation seriously, most of the Court\u2019s interpretive practices are now invalid because they fail the tests the opinion announces. It does not seem plausible that the Court meant for the opinion to have that kind of ripple effect (Ironically, when the Court handed down the original Chevron<\/em> opinion in 1984, it likewise did not recognize the major doctrinal shifts it would ultimately cause.7<\/a><\/sup>Thomas W. Merrill, The Story of <\/em>Chevron: The Making of an Accidental Landmark<\/em>, 66 Admin. L. Rev. 253, 257, 277 (2014) (<\/span>explaining that the Court did not realize when Chevron<\/em> was announced that it was announcing a new doctrine and that it was only after utilization by the D.C. Circuit and Executive Branch lawyers that Chevron<\/em>\u2019s impact became significant). <\/span>). Loper Bright<\/em> either marks a sea-change in the Court\u2019s practice (unlikely) or, like other opinions that fall back on citation to Marbury v. Madison<\/em>,8<\/a><\/sup>5 U.S. 137 (1803).<\/span> it is a one-off for purposes of a judicial power grab.<\/p>\n

Zooming out from the particulars of statutory interpretation theory, Loper Bright<\/em> also displays little understanding of Congress writ large\u2014or else it adopts a fictitious view of Congress\u2019s abilities for convenience (which would be ironic, given it slaughtered Chevron<\/em> on the ground that it was a legal fiction). The opinion seems to assume that Congress can update statutes as often as needed to keep up with changing technologies and facts, so broad delegations to agencies are unnecessary. But we all know that such constant updating by Congress is neither possible nor usually wise, given the pace and complexity of many regulatory schemes. The opinion also implies that congressionally sanctioned agency deference would indeed be permissible (and seems to acknowledge why Congress would want to delegate), yet at the very same time, the opinion suggests the opposite.9<\/a><\/sup>See infra<\/em> Part VI.<\/span> The Court states there is no evidence that Congress agreed with Chevron<\/em> and so implies that had Congress said, \u201cyes, we agree!\u201d Chevron<\/em> would have survived. But then the Court implies, in other sections of the opinion, that any such attempt by Congress would be unconstitutional. And of course, the Court has already emphasized through a separate line of \u201cmajor questions\u201d cases that any such delegations must now be significantly constrained.10<\/a><\/sup>See, e.g.<\/em>, Nat\u2019l Fed\u2019n of Indep. Bus. v. OSHA, 595 U.S. 109 (2022) (holding that imposing a vaccine mandate exceeded the Secretary of Labor\u2019s authority); West Virginia v. EPA, 597 U.S. 697 (2022) (preventing the EPA from using a generation-shifting approach to emissions reduction for lack of sufficiently explicit Congressional authorization); Biden v. Nebraska, 143 S. Ct. 2355 (2023) (denying the Secretary of Education authority to cancel certain student loans absent clear delegation from Congress). <\/span> All of this raises the question, why make such grand pronouncements about statutory interpretation canons at all<\/em>\u2014especially when those pronouncements further muddy the Court\u2019s interpretive approach\u2014if the real basis for the opinion is constitutional law?<\/p>\n

This Essay explores what Loper Bright<\/em> tells us about the Court\u2019s continued lack of a coherent theory of Congress and statutory interpretation. Much is at stake. Administrative law scholars are well aware that with Chevron<\/em>\u2019s downfall, the Court\u2019s own statutory interpretation preferences will become even more important in agency implementation of federal statutes, and so understanding the Court\u2019s approach is critical.<\/p>\n

But the importance here extends far beyond administrative law and those who have sweated Chevron<\/em>\u2019s end. A critical part of any inquiry into statutory interpretation is what the prevailing theory tells us about the interbranch relationship. As Jerry Mashaw observed long ago, \u201c[a]ny theory of statutory interpretation is at base a theory about constitutional law.\u201d11<\/a><\/sup>Jerry Mashaw, As If Republican Interpretation<\/em>, 97 Yale L.J.<\/span> 1685, 1686 (1988).<\/span> Loper Bright <\/em>is purportedly an opinion about precisely that, but the extent to which the Court\u2019s pronouncements contradict its usual practice obscures, rather than clarifies, any theory of statutory-interpretation separation of powers.<\/p>\n

This Essay begins by showing that the Court\u2019s denouncement of Chevron<\/em> as a \u201cjudicial invention\u201d and a \u201cfiction\u201d is inconsistent with its asserted approach to statutory interpretation rules in most all other instances. It details the Court\u2019s unwillingness to set forth a developed and consistent theory of Article III that justifies whether canons are law, and who has the power to create them and why. That very failure is also the reason that all<\/em> statutory interpretation rules are unpredictable\u2014a problem not limited to Chevron<\/em>, and one that Chevron<\/em>\u2019s end will not resolve. The Essay then illustrates how the Court\u2019s originalism-based critique of Chevron<\/em> is inconsistent with the Court\u2019s typical, potentially more dynamic, approach to statutory interpretation that relies on what the reasonable reader of today<\/em> would think a statute means. Finally, the Essay questions whether Loper Bright<\/em>\u2019s entire statutory interpretation analysis is smoke and mirrors. Despite everything Loper Bright <\/em>proclaims about what legitimatizes certain statutory interpretation rules and delegitimizes others, the opinion simultaneously suggests that even if Chevron <\/em>complied with all of Loper Bright<\/em>\u2019s stated conditions\u2014that is, even if Chevron<\/em> were not a fiction, even if it were predictable, and even if it were originalist in approach\u2014the Court would still find it unconstitutional. All the more reason to wonder whether to take any of the dramatic statutory interpretation pronouncements in this opinion at face value.<\/p>\n

Ultimately, the opinion reveals that Hart and Sacks\u2019s infamous charge\u2014\u201c[t]he hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation\u201d12<\/a><\/sup>Henry<\/span> M. Hart<\/span>, Jr<\/span>. & Albert<\/span> M. Sacks<\/span>, The<\/span> Legal <\/span>Process<\/span>: Basic<\/span> Problems<\/span> in the <\/span>Making and <\/span>Application<\/span> of <\/span>Law<\/span> 1169 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).<\/span>\u2014remains true. The opinion reinforces leading textualist jurist Frank Easterbrook\u2019s similar and more recent charge (aligned with my own) that the Court\u2019s approach is marked by an \u201cabsence of method.\u201d13<\/a><\/sup>Frank H. Easterbrook, The Absence of Method in Statutory Interpretation<\/em>, 84 U. Chi. L. Rev. 81, 83 (2017); <\/span>accord<\/em> Abbe R. Gluck, Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve on What They Are Already Trying to Do<\/em>, 84 U. Chi. L. Rev. 177, 179 (2017) [<\/span>hereinafter Gluck, Failure of Formalism<\/em>].<\/span><\/span> For decades, judges and scholars have debated how prevailing approaches to statutory interpretation should accommodate both Article III and the principle of legislative supremacy.14<\/a><\/sup>See, e.g.<\/em>, Roscoe Pound, Spurious Interpretation<\/em>, 7 Colum. L. Rev.<\/span> 379, 384\u201386 (1907).<\/span> But Loper Bright<\/em> illustrates that, even 100 years into the age of statutes\u2014and with it, a legal regime dominated by statutory interpretation\u2014we still do not have a coherent, developed theory of the Court-Congress relationship.<\/p>\n

II. Loper Bright<\/em> Makes Clear That the Court Still Lacks a Jurisprudential Theory of What Justifies the Existence and Application of the Canons of Statutory Interpretation.<\/span><\/p>\n

Loper Bright drives home that the Court still does not have a coherent jurisprudential theory of what legitimizes the interpretive rules it deploys, and why. The Court impugns Chevron<\/em> as \u201ca judicial invention.\u201d15<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2272 (2024). <\/span> Justice Neil Gorsuch, in concurrence, claims Chevron<\/em> is illegitimate because it lacks the features of other interpretive rules \u201cthat have guided federal courts since the Nation\u2019s founding.\u201d16<\/a><\/sup>Id.<\/em> at 2275 (Gorsuch, J., concurring). <\/span> These arguments go to the fundamental constitutional question of which branch has the power to create interpretive rules, and imply that the judiciary cannot.<\/p>\n

Justice Elena Kagan, in dissent, was correct to call her colleagues\u2019 bluff. As she argued, \u201cpresumptions of this kind are common in the law,\u201d17<\/a><\/sup>Id.<\/em> at 2297 n.1 (Kagan, J., dissenting).<\/span> whether it is the presumption against extraterritoriality that the Court entrenched as a canon (led by Justice Antonin Scalia) in 2010;18<\/a><\/sup>Morrison v. Nat\u2019l Austl. Bank Ltd., 561 U.S. 247, 255 (2010).<\/span> or \u201cthe (so far unnamed) presumption against treating a procedural requirement as \u2018jurisdictional\u2019 unless \u2018Congress clearly states that it is\u2019\u201d19<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2297 n.1 (Kagan, J., dissenting) (internal citation omitted).<\/span> that the Court announced in 2022;20<\/a><\/sup>Boechler v. Comm\u2019r, 596 U.S 199, 203 (2022).<\/span> the presumption against preemption announced as a canon in Rice v. Santa Fe Elevator Corp. <\/em>in 1947;21<\/a><\/sup>331 U.S. 218, 230 (1947).<\/span> the federalism canon announced in 1991 in Gregory v. Ashcroft<\/em>;22<\/a><\/sup>501 U.S. 452, 470 (1991).<\/span> the no-elephants-in-mouseholes canon of 2001 (developed by Justice Scalia himself);23<\/a><\/sup>Whitman v. Am. Trucking Ass\u2019ns, 531 U.S. 457, 468 (2001).<\/span> the presumption in favor of arbitration formalized in 1983;24<\/a><\/sup>Moses H. Cone Mem\u2019l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24\u201325 (1983). <\/span> or the major questions canon, the first whiffs of which were offered in 1994 (again by Justice Scalia)25<\/a><\/sup>MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 (1994).<\/span> and then solidified as a powerful canon as recently as 2022.26<\/a><\/sup>See <\/em>Nat\u2019l Fed\u2019n of Indep. Bus. v. OSHA, 595 U.S. 117; West Virginia v. EPA, 597 U.S. 697, 723\u201325 (2022).<\/span><\/p>\n

It does not seem plausible that the Court is suggesting that all of these rules created in the modern era, and many more, are illegitimate. Loper Bright<\/em>\u2019s new proclamation that interpretive canons that did not exist at the founding are illegitimate must be based on some theory of Article III\u2014and the judicial power or lack thereof to create interpretive rules\u2014yet the Court has never articulated any such theory.<\/p>\n

I have written previously about the stubborn jurisprudential ambiguity of the Court\u2019s approach to statutory interpretation.27<\/a><\/sup>Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as \u201cLaw\u201d and the <\/em>Erie Doctrine<\/em>, 120 Yale<\/span> L.J.<\/span> 1898, 1902 (2011) [hereinafter Gluck, Intersystemic Statutory Interpretation<\/em>]; Abbe R. Gluck, The Federal Common Law of Statutory Interpretation<\/em>, 54 Wm. & Mary L. Rev.<\/span> 753, 755\u201356 (2013) [hereinafter Gluck, Federal Common Law<\/em>]. <\/span> Federal courts generally do not treat statutory interpretation rules as law or precedent. They do not consider them on par with other interpretive rules for written texts, like the parol evidence rule, for purposes of doctrines of precedent or the Erie<\/em> doctrine. And, most critically for this discussion, courts have generally been reluctant to opine on where their own power comes from to create these rules of statutory interpretation. Instead, courts adopt the fiction that interpretive rules are not created by judges, but rather are merely mirrors of existing congressional processes. As I have detailed, that justification is a fiction with respect to most canons,28<\/a><\/sup>See generally<\/em> Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside\u2014An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I<\/em>, 65 Stan. L. Rev.<\/span> 901, 907 (2013) (showing that statutory drafters are not aware of\u2014or, despite awareness, do not use\u2014a host of canons); Abbe R. Gluck, Justice Scalia\u2019s Unfinished Business in Statutory Interpretation: Where Textualism\u2019s Formalism Gave Up<\/em>, 92 Notre Dame L. Rev. <\/span>2053, 2067\u201369 (2017) [hereinafter Gluck, Justice Scalia\u2019s Unfinished Business<\/em>]. <\/span> and it is the same fiction the Court used to overrule Chevron<\/em>. The Court has always been unwilling to take the Article III questions head on. But how can the Court invalidate canons on the ground they lack a founding-era pedigree without addressing the core question of where canons come from?<\/p>\n

The truth is that canons are federal common law. They are federal common law\u2014or if one resists that term, judicial creations or adoptions\u2014because they impose order or policy norms upon Congress that Congress does not impose upon itself. Congress does not use words consistently across the U.S. Code, but consistent-word-usage canons are prevalent in the Court\u2019s opinions.29<\/a><\/sup>Gluck, Failure of Formalism<\/em>, supra<\/em> note 13; Gluck & Bressman, supra<\/em> note 28, at 936 (\u201c[O]nly 9% of respondents told us that drafters often or always intend for terms to apply consistently across statutes that are unrelated by subject matter\u201d). <\/span> Congress does not legislate with presumptions like federalism, lenity, or arbitration in mind, but the Court itself imposes those presumptions through canons.30<\/a><\/sup>Gluck & Bressman,<\/em> supra<\/em> note 28, at 941 fig.5, 944\u201347 (indicating that fewer than 15% of legislative drafters used the rule of lenity (by name) or its underlying assumptions, noting that drafters did not expect ambiguities concerning federalism or preemption to be resolved in any particular direction, and empirically demonstrating \u201c[t]he irrelevance of clear statement rules\u201d).<\/span> Judicially-created interpretive doctrines for federal statutes are a necessary corollary of the federal statutory age. No one expects federal courts to use state interpretive rules to interpret federal statutes\u2014that would be nonsensical for creatures of Congress\u2019s creation.<\/p>\n

Enter Loper Bright<\/em>. Justice Gorsuch writes as if Erie <\/em>was never decided.31<\/a><\/sup>Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (\u201cThere is no federal general common law\u201d). The only alternative to deeming these rules common law, as I have detailed elsewhere, is to depart from the tenets of the Erie <\/em>doctrine and declare there exists some other as-yet-unnamed category of law that is somehow of lesser weight, and the canons are in that category.<\/span> Gorsuch\u2019s concurrence emphasizes that \u201c[a]t common law . . . a judge\u2019s job was to find and apply the law, not make it.\u201d32<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2276 (2024) (Gorsuch, J., concurring).<\/span> These pronouncements contradict the core jurisprudential tenet of Erie<\/em>, namely, that common law is not a \u201cbrooding omnipresence\u201d to be found\u2014it is made<\/em>, and made by judges.33<\/a><\/sup>See<\/em> Guaranty Trust Co. v. York, 326 U.S. 99, 101\u201302 (1945) (\u201cIn overruling Swift v. Tyson<\/em>, Erie R. Co. v. Tompkins<\/em> did not merely overrule a venerable case. It overruled a particular way of looking at law which dominated the judicial process long after its inadequacies had been laid bare. Law was conceived as a \u2018brooding omnipresence\u2019 of Reason, of which decisions were merely evidence and not themselves the controlling formulations\u201d) (citations omitted).<\/span> And this Erie<\/em> confusion is relevant to the arguments about what makes statutory interpretation rules like Chevron<\/em> legitimate because the Court continues to insist that it <\/em>(the Court) is not creating canons\u2014and that judicially created canons are illegitimate. But the canons come from somewhere, not \u201cthe sky.\u201d34<\/a><\/sup>S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting) (\u201cThe common law is not a brooding omnipresence in the sky\u201d).<\/span> And Chevron <\/em>is no different from many other canons in use. They were mostly created by courts.<\/p>\n

Gorsuch is not alone. The majority opinion likewise implies that judicially created canons are unconstitutional. The majority claims that the Constitution empowers judges \u201cto construe the law with \u2018[c]lear heads . . . and honest hearts,\u2019 not with an eye to policy preferences that had not made it into the statute.\u201d35<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2268 (quoting 1 Works of James Wilson<\/span> 363 (J. Andrews ed., 1896)).<\/span> But my legislation casebook with Eskridge and Nourse lists more than 100<\/em> so-called substantive canons in which judges do absolutely impose policy preferences onto statutes.36<\/a><\/sup>William N. Eskridge, Jr., Abbe R. Gluck & Victoria F. Nourse<\/span>, Statutes, Regulation, and Interpretation: Legislation and Administration in the Republic of Statutes<\/span> 1042\u201360 (2d ed. 2024). <\/span> Justice Scalia himself created many of those canons, even as he called them illegitimate.37<\/a><\/sup>See <\/em>Gluck, Justice Scalia\u2019s Unfinished Business<\/em>, supra<\/em> note 28, at 2062\u201363; Antonin Scalia<\/span>, A Matter of Interpretation<\/span> 27\u201328 (2018) (calling into question judicial authority to impose \u201cdice-loading rules\u201d). For further information regarding some canons Justice Scalia created, see,<\/em> e.g.<\/em>, Whitman v. Am. Trucking Ass\u2019ns, 531 U.S. 457, 468 (2001) (the no-elephants-in-mouseholes canon); MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 (1994) (offering an early articulation of the major questions doctrine).<\/span><\/p>\n

Justice Barrett herself has previously argued that judges have no authority to create canons unless they derive from constitutional principles, but she exempts text-oriented canons from her critique, even though those canons also impose policy preferences.38<\/a><\/sup>Amy Coney Barrett, Substantive Canons and Faithful Agency<\/em>, 90 B.U. L. Rev.<\/span> 109, 168\u201369, 179 (2010) [hereinafter Barrett, Substantive Canons and Faithful Agency<\/em>]. Text-based canons impose judicial preferences like consistency or incorporation of common-law definitions that are not in the statutes themselves.<\/span> Justice Brett Kavanaugh, in a 2024 concurrence, questions the premise of one of the pro-veteran canons created by courts, implying that only Congress has the ability to put a thumb on the scale in favor of which groups receive government benefits.39<\/a><\/sup>Rudisill v. McDonough, 601 U.S. 294, 317\u201318 (2024) (Kavanaugh, J., concurring) (stating that \u201cjudges have no constitutional authority to favor or disfavor one group over another\u201d).<\/span> It is hard to see how the same arguments would not apply to other groups the Court favors with different canons: criminal defendants (lenity),40<\/a><\/sup>E.g.<\/em>, United States v. Santos, 553 U.S. 507, 514 (2008); Bittner v. United States, 598 U.S. 85, 101\u201303 (2023).<\/span> state actors (the federalism canon),41<\/a><\/sup>E.g.<\/em>, Gregory v. Ashcroft, 501 U.S. 452, 470 (1991); Sackett v. EPA, 598 U.S. 651, 679 (2023).<\/span> judges (the presumption in favor of concurrent state and federal jurisdiction),42<\/a><\/sup>E.g.<\/em>, Atl. Richfield Co. v. Christian, 590 U.S. 1, 14\u201315 (2020).<\/span> and Native Americans (the Indian canons).43<\/a><\/sup>E.g.<\/em>, McGirt v. Oklahoma, 591 U.S. 894, 904, 916 (2020) (the presumption against disestablishment of Indian reservations absent a clear expression of congressional intent); Herrera v. Wyoming, 587 U.S. 329, 345 (2019) (stating the presumption that ambiguities in Indian treaties \u201cmust be . . . resolved in favor of the Indians\u201d) (internal quotations and citation omitted); Okla. Tax Comm\u2019n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993) (the presumption against state taxation of Native Americans absent express congressional authorization); Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 790 (2014) (the presumption in favor of tribal immunity absent an \u201cunequivocal[]\u201d expression of congressional purpose to the contrary).<\/span> And, if one responds, \u00e0 la <\/em>Justice Barrett, that those doctrines have a plausible constitutional basis, then what about those canons favoring debtors (the presumption in favor of a fresh start in bankruptcy),44<\/a><\/sup>E.g.<\/em>, Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367 (2007); Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 390 (2023).<\/span> or the IRS (the presumption that exceptions to the tax code are narrowly construed),45<\/a><\/sup>E.g.<\/em>, United States v. Wells Fargo Bank, 485 U.S. 351, 354 (1988); Chickasaw Nation v. United States, 534 U.S. 84, 95 (2001).<\/span> or corporations (the presumption favoring arbitration)?46<\/a><\/sup>E.g.<\/em>, Moses H. Cone Mem\u2019l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24\u201325 (1983); Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 232\u201333 (2013).<\/span><\/p>\n

Finally, the Court also charged Chevron<\/em> as doing something illicit by operating as a clarifying interpretive presumption when statutes are vague. But how is a presumption of deference to an agency\u2019s expert opinion when a statute is vague different than a presumption in favor of interpreting ambiguous statutes not to raise constitutional questions?47<\/a><\/sup>See, e.g.<\/em>, Skilling v. United States, 561 U.S. 358, 405\u201306 (2010) (\u201cIt has long been our practice, however, before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction\u201d).<\/span> The Court has gone so far as to apply that \u201cconstitutional avoidance\u201d presumption when one interpretation renders a statute \u201cunconstitutionally vague.\u201d48<\/a><\/sup>Id.<\/em><\/span> Loper Bright<\/em>, in contrast, implies it is a Marbury<\/em> violation to construe a statute in ways that deviate from the best interpretation, even if the statute is vague.<\/p>\n

In other words, Chevron <\/em>was the target here, but the Court\u2019s critique of it implicates many canons that the Court has validated.<\/p>\n

III. Statutory Interpretation is Full of Fictions. Why Single Out Chevron<\/em>?<\/span><\/p>\n

What is most striking about the opinion for those who follow statutory interpretation doctrine is how many times the words \u201creality\u201d and \u201cfiction\u201d appear in both the majority and concurrence.49<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2265 (2024) (\u201cPresumptions have their place in statutory interpretation, but only to the extent that they approximate reality\u201d); id.<\/em> at 2268 (\u201cIn truth, Chevron<\/em>\u2019s justifying presumption is, as Mem\u00acbers of this Court have often recognized, a fiction\u201d); id.<\/em> (\u201cConsider the many refinements we have made in an effort to match Chevron<\/em>\u2019s presumption to reality\u201d); id.<\/em> at 2269 (referring to \u201cChevron<\/em>\u2019s fictional presumption of congressional intent\u201d); id.<\/em> at 2282 (Gorsuch, J., concurring) (\u201c[A]s even its most ardent defenders have conceded, Chevron<\/em> deference rests upon a \u2018fictionalized<\/em> statement of legislative desire,\u2019 . . . . As proponents see it, that fiction represents a \u2018policy judgmen[t] about what . . . make[s] for good government.\u2019 But in our democracy unelected judges possess no authority to elevate their own fictions over the laws adopted by the Nation\u2019s elected representatives\u201d) (footnote omitted) (citations omitted); id.<\/em> at 2282 n.2 (citing a 1989 article by Justice Scalia and a 1986 article by then-Professor Stephen Breyer describing Chevron<\/em> as resting upon a fiction); id.<\/em> at 2282 n.3 (citing for a second-time then-Professor Kagan\u2019s 2001 article for the proposition that Chevron<\/em>\u2019s presumption is fictional); id.<\/em> at 2286 (\u201cChevron<\/em>\u2019s fiction has led us to a strange place\u201d); id.<\/em> at 2289 (\u201c[A]gencies cannot invoke a judge-made fiction to unsettle our Nation\u2019s promise to individuals that they are entitled to make their arguments about the law\u2019s demands on them in a fair hearing, one in which they stand on equal footing with the government before an independ\u00acent judge\u201d). <\/span> Chevron<\/em>\u2019s failure to \u201capproximate reality\u201d was a primary reason given to overrule it.50<\/a><\/sup>Id.<\/em> at 2265.<\/span> The expressed concern about fictions relates to the jurisprudential point I have just elaborated, because the Court implies in Loper Bright<\/em> that interpretive rules have to reflect Congress; that is, rules have to come from somewhere other than courts to be legitimate. I have spent the past decade addressing whether the Court\u2019s interpretive presumptions actually aim to reflect Congress. Largely, the answer is no. Again, Chevron <\/em>is not alone.<\/p>\n

Until Justice Scalia\u2019s death, the prevailing theory of statutory interpretation was the \u201cfaithful agent\u201d theory: the goal of interpretation was to serve as a \u201cfaithful agent of Congress.\u201d51<\/a><\/sup>See, e.g.<\/em>, Barrett, Substantive Canons and Faithful Agency<\/em>, supra<\/em> note 38, at 110 (\u201c[T]extualists . . . understand courts to be the faithful agents of Congress\u201d); cf. <\/em>John F. Manning, Textualism and the Equity of the Statute<\/em>, 101 Colum. L. Rev.<\/span> 1, 18, 86, 126\u201327 (2001) (arguing that a textualist approach best effectuates faithful agency). <\/span> The big theoretical fight between textualists and purposivists was not about this shared goal, but rather about which of the two interpretive approaches best effectuated it. Textualists argued that discerning legislative intent in a legislature of 535 persons was not possible,52<\/a><\/sup>Max Radin, Statutory Interpretation<\/em>, 43 Harv. L. Rev.<\/span> 863, 870 (1930) (\u201cThe chances that of several hundred men each will have exactly the same determinate situations in mind as possible reductions of a given determinable, are infinitesimally small\u201d).<\/span> and so argued that textualist rules were a \u201csecond-best\u201d solution to coordinate the system.53<\/a><\/sup>Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, <\/em>1990 Sup. Ct. Rev.<\/span> 231, 232 (1990); <\/span>accord<\/em> John F. Manning, Inside Congress\u2019s Mind<\/em>, 115 Colum. L. Rev.<\/span> 1911, 1912 (2015). <\/span> Textualism\u2019s rules were justified because Congress presumably knew and agreed with them, or at least drafted knowing them, and because they were mere reflections of congressional drafting practices, not judicial inventions.54<\/a><\/sup>E.g.<\/em>, Lockhart v. United States, 546 U.S. 142, 148 (2005) (Scalia, J., concurring) (\u201c[L]egislative express-reference or express-statement requirements may function as background canons of interpretation of which Congress is presumptively aware\u201d). <\/span> Scalia described legitimate canons as those \u201cestablished interpretive presumptions that are (1) based upon realistic assessments of congressional intent, and (2) well known to Congress\u2014thus furthering rather than subverting genuine legislative intent.\u201d55<\/a><\/sup>Bond v. United States, 572 U.S. 844, 872 (2014) (Scalia, J., concurring). <\/span><\/p>\n

Similarly, Justice Scalia premised his support of Chevron<\/em> on explicitly dialogic grounds, namely, that Chevron<\/em> was a way for the Court and Congress to be in dialogue about Congress\u2019s intentions. In his view, Chevron<\/em>, even if fictional, \u201coperate[d] principally as a background rule of law against which Congress can legislate.\u201d56<\/a><\/sup>Antonin Scalia, Judicial Deference to Administrative Interpretations of Law<\/em>, 1989 Duke<\/span> L.J.<\/span> 511, 517 (1989) [hereinafter Scalia, Judicial Deference to Administrative Interpretations<\/em>]. <\/span> Chief Justice John Roberts and Justice Kavanaugh, who both grew up as lawyers and judges during the Scalia era and (especially for the Chief) as products of Harvard Law School\u2019s Legal Process School, have long continued to embrace this dialogic approach to interpretation, and to canons in particular.57<\/a><\/sup>For example, Chief Justice Roberts has argued that \u201c[p]art of a fair reading of statutory text is recognizing that \u2018Congress legislates against the backdrop\u2019 of certain unexpressed presumptions.\u201d Bond<\/em>, 572 U.S. at 857 (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). Justice Frankfurter has stated that reading a statute correctly \u201cdemands awareness of certain presuppositions.\u201d Felix Frankfurter, Some Reflections on the Reading of Statutes<\/em>, 47 Colum. L. Rev. 527, 537 (1947); <\/span>see also<\/em> Bostock v. Clayton Cnty., 590 U.S. 644, 792 (2020) (Kavanaugh, J., dissenting) (arguing that \u201clongstanding and widespread congressional practice matters\u201d because Congress has illustrated it knows how to incorporate sexual orientation into statutes when it wants to); Rudisill v. McDonough, 601 U.S. 294, 315 (2024) (Kavanaugh, J., concurring) (\u201cBecause a substantive canon by definition has important decision-altering effects, any substantive canon must be sufficiently rooted in constitutional principles or congressional practices\u201d). <\/span><\/p>\n

My work with Lisa Bressman, however, has illustrated that many canons generally do not<\/em> effectuate interbranch dialogue. Chevron<\/em>, ironically, was actually one of the few canons Congress did<\/em> know and legislated against the backdrop of, just as Justice Scalia assumed.58<\/a><\/sup>Bond<\/em>, 527 U.S. at 927 fig.1, 941 fig.5, 993 fig.10, 995\u201396; Scalia, Judicial Deference to Administrative Interpretations<\/em>, supra<\/em> note 56, at 516 (arguing that \u201cCongress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known\u201d).<\/span><\/p>\n

The premises of these arguments about the virtues of Court-Congress dialogue were emphatically challenged by then-Professor Barrett in 2017. In Congressional Insiders and Outsiders<\/em>, she argued that textualists<\/p>\n

do not use canons and dictionaries in an effort to track the linguistic patterns of the governors; they use them because they reflect the linguistic patterns of the governed. What matters to the textualist is how the ordinary English speaker\u2014one unacquainted with the peculiarities of the legislative process\u2014would understand the words of a statute.59<\/a><\/sup>Barrett, Congressional Insiders and Outsiders<\/em>, supra <\/em>note 3, at 2194.<\/span><\/p>\n

Justice Gorsuch picked up this baton. He has steered his textualist colleagues towards a new approach that puts a premium on \u201cordinary meaning\u201d as understood by \u201cordinary people\u201d seeking to \u201cunderstand the rules that govern them\u201d\u2014not meaning as understood by legislators.60<\/a><\/sup>Niz-Chavez v. Garland, 593 U.S. 155, 169 (2021).<\/span> In Section IV below, I elaborate how that ordinary reader approach conflicts with the approach in Loper Bright<\/em>. But, for now, know that Justice Gorsuch is a fellow traveler with Justice Barrett on the question of the utility of a perspective focused on what Congress knows or how Congress drafts legislative text.<\/p>\n

When looking for empirical evidence to justify canon usage, Justice Gorsuch does not seek empirical evidence of how Congress understands canons or drafts statutes, but rather how ordinary people<\/em> read language and whether their readings<\/em> track the canons.61<\/a><\/sup>Id.<\/em><\/span> Justice Samuel Alito echoes the same point in Facebook, Inc. v. Duguid<\/em>.62<\/a><\/sup>592 U.S. 395, 412 (2021) (Alito, J., concurring) (\u201cThe strength and validity of an interpretive canon is an empirical question, and perhaps someday it will be possible to evaluate these canons by conducting what is called a cor\u00acpus linguistics analysis, that is, an analysis of how particu\u00aclar combinations of words are used in a vast database of English prose\u201d) (citations omitted). <\/span><\/p>\n

The point should be obvious. Who cares if <\/em>Chevron did not reflect congressional intent (and it very likely did) if the Court is no longer using that guide as a legitimating feature of statutory interpretation?63<\/a><\/sup><\/em>In other work, I detail how this has not been as successful as it initially appears. The Court continues to profess fidelity to the new \u201cnot Congress\u201d approach, and yet in fact often sneaks in the very \u201cinsider\u201d tools Justice Barrett critiques. For example, the Court still relies on legislative history, but often purposefully masks it with citations to earlier cases that use it rather than citing to the legislative history directly. See generally<\/em> Abbe R. Gluck & Laila M. Robbins, The Shift to the Ordinary Reader in Statutory Interpretation\u2014and the Enduring Relevance of Congress<\/em>

\nv, 64 J.L. & Pol\u2019y<\/span> (forthcoming 2024) (showing how ordinary-meaning textualism smuggles in congressional meaning). But what matters here is what the Court asserts it is doing.<\/span><\/em><\/p>\n

The Loper Bright <\/em>Court argued that \u201c[p]resumptions have their place in statutory interpretation, but only to the extent that they approximate reality.\u201d64<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2265 (2024).<\/span> This phraseology goes back to the Gluck-Bressman study, where we labeled those canons that reflect congressional drafting practice as \u201capproximation canons.\u201d65<\/a><\/sup>See<\/em> Gluck & Bressman, supra<\/em> note 28, at 907 (defining \u201capproximation canons\u201d as \u201crules in which the Court seems to be correctly intuiting how Congress signals its intent even as Congress remains unaware of the rules\u2019 existence\u201d); id.<\/em> at 953 (\u201c[T]he legitimacy of an approximation rule depends on how well it actually approximates\u201d); id.<\/em> at 955\u201356 (arguing that \u201ccontinued application of [textual] canons in those limited circumstances in which one can confirm that they do approximate drafting reality\u201d).<\/span> But this Court has never been seriously interested in Congress\u2019s practices and perspectives until now; nor has it invalidated any of the of the other canons that have been shown to deviate from how Congress drafts statutes.<\/p>\n

Justice Gorsuch\u2019s concurrence makes the same about-face, suddenly interested in Congress\u2019s practices:<\/p>\n

Chevron<\/em> deference rests upon a \u201cfictionalized<\/em> statement of legislative desire\u201d . . . As proponents see it, that fiction represents a \u201cpolicy judgment about what . . . make[s] for good government.\u201d But in our democracy unelected judges possess no authority to elevate their own fictions over the laws adopted by the Nation\u2019s elected representatives.66<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2282 (Gorsuch, J., concurring) (quoting David J. Barron & Elena Kagan, Chevron\u2019s Nondelegation Doctrine<\/em>, 2001 Sup. Ct. Rev.<\/span> 201, 212 (2001)).<\/span><\/p>\n

This treatment of fictions in Loper Bright <\/em>seems to be a useful-for-this-case-only strategy rather than a sincere assessment of the Court\u2019s own approach. If the Court means what it says about the dangers of canonical fictions in Loper Bright<\/em>, it needs to not only reassess many other canons, but also square how a focus on congressional reality fits into its new \u201cordinary reader\u201d\/outsider-not-insider approach.<\/p>\n

IV. Chevron was a Canon\u2014and a Precedent.<\/span><\/p>\n

Loper Bright treats Chevron<\/em> as a precedent\u2014as common law to be overruled. This is another way in which the opinion seems to unwittingly wade into an ongoing theoretical muddle and complicate it further, because other canons are not treated in the same way.<\/p>\n

One of the reasons that the field of statutory interpretation remains a jurisprudential muddle is that, despite the thousands of pages in the U.S. Reports devoted to statutory interpretation debates, the Court has never answered the fundamental question of the canons\u2019 legal status: are presumptions of statutory interpretation common law, nothing, or something in between? As this Essay has already explained, this ambiguity inherent in the legal status of canons raises questions about which branches have the power to create interpretive rules.67<\/a><\/sup>Are the canons a form of federal common law that the Court is empowered under Article III to create, and that Congress can overrule? Are they instead something on the order of constitutional common law, or inherent to Article III power, making Congress\u2019s authority over them unclear? See generally<\/em> Gluck, Intersystemic Statutory Interpretation<\/em>, supra <\/em>note 27; Gluck, Federal Common Law, supra <\/em>note 27.<\/span><\/p>\n

The ambiguity also contributes to a theoretical gap when it comes to the idea of methodological precedents. Justice Scalia long ago claimed textualism would bring predictability to statutory interpretation, but he failed in this endeavor in large measure because he\u2014along with the rest of the Court\u2014was unwilling to give statutory interpretation methodology precedential effect\u2014because he refused to treat canons as ordinary law.68<\/a><\/sup>See<\/em> Gluck, Failure of Formalism<\/em>, supra<\/em> note 13, at 198. <\/span> As a result, the methodology used in one case does not carry over to the next, even where the same statute is being construed. To see why this has been so puzzling, consider that even though many judges do not think statutory interpretation methodology is precedential law subject to the Erie<\/em> doctrine, all judges believe methodologies for other written instruments, like contracts and the parol evidence rule, are law that is precedential and subject to Erie<\/em>.69<\/a><\/sup>See, e.g.<\/em>, Gluck, Intersystemic Statutory Interpretation<\/em>, supra<\/em> note 27, at 1970\u201376; Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism<\/em>, 119 Yale L.J.<\/span> 1750, 1757 (2010) [hereinafter Gluck, States as Laboratories<\/em>]; Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?<\/em>, 96 Geo. L.J. 1863, 1900 (2008); <\/span>Nicholas Rosenkranz, Federal Rules of Statutory Interpretation, <\/em>115 Harv. L. Rev<\/span>. 2085, 2152 (2002).<\/span><\/p>\n

In a set of articles about a decade ago, I engaged in debates with others about whether Chevron<\/em> was just a \u201ccanon\u201d or also a \u201cprecedent.\u201d I was in the minority in arguing that it was both.70<\/a><\/sup>Compare<\/em> Connor N. Raso & William N. Eskridge, Jr., Chevron as a Canon, Not a Precedent: An Empirical Study of What Motivates Judges in Agency Deference Cases<\/em>, 110 Colum. L. Rev. 1727, 1796 (2010), <\/span>and <\/em>Gillian E. Metzger, Embracing Administrative Common Law<\/em>, 80 Geo. Wash. L. Rev. <\/span>1293, 1295 (2012), with<\/em> Gluck, Federal Common Law<\/em>, supra <\/em>note 27, at 798\u2013800. <\/span> In my work with Judge Richard Posner, federal appellate judges agreed that some rules of statutory interpretation, like Chevron<\/em> and the rule of lenity, had more lawlike status than others and were viewed by judges as more precedential.71<\/a><\/sup>Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals<\/em>, 131 Harv. L. Rev.<\/span> 1298, 1302, 1331\u201332 (2018). <\/span> And in Kisor v. Wilkie<\/em>, the Court engaged in statutory interpretation analysis about the future of Auer<\/em> deference, discussing the canon throughout as a precedent subject to stare decisis.72<\/a><\/sup>588 U.S. 558, 588 (2019) (\u201cOf course, it is good\u2014and important\u2014for our opinions to be right and well-reasoned. But that is not the test for overturning precedent\u201d); id. <\/em>at 586 (\u201cIf all that were not enough, stare decisis<\/em> cuts strongly against Kisor<\/em>\u2019s position. \u2018Overruling precedent is never a small matter\u2019\u201d) (quoting Kimble v. Marvel Entertainment, 576 U.S. 446, 455 (2015)).<\/span><\/p>\n

If there was anything left to that debate, Loper Bright <\/em>settles it. The Court engages in traditional stare decisis analysis to justify overruling Chevron<\/em>, including considering reliance interests.73<\/a><\/sup>See, e.g.<\/em>, Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2272 (2024) (\u201cGiven our constant tinkering with and eventual turn away from Chevron<\/em>, and its inconsistent application by the lower courts, it instead is hard to see how anyone\u2014Congress included\u2014could reasonably expect a court to rely on Chevron<\/em> in any particular case\u201d).<\/span> It is particularly eye-opening that even after Justice Gorsuch goes to the trouble of talking about dicta, he does not even classify Chevron<\/em> as dicta, whereas others who have argued that methodology is not precedential have called it something on the order of dicta. Justice Ketanji Brown Jackson herself, in another case last Term, cited Justice Scalia\u2019s Reading Law <\/em>for the proposition that the textual canons are not law.74<\/a><\/sup>Fischer v. United States, 144 S. Ct. 2176, 2191 n.1 (2024) (Jackson, J., concurring) (\u201cAs one treatise explains, such canons are \u2018not . . . rule[s] of law\u2019 but rather \u2018one of various factors to be considered\u2019\u201d) (quoting A. Scalia<\/span> & B. Garner<\/span>, Reading Law: The Interpretation of Legal Texts<\/span> 212 (2012)). <\/span> But, as with the rest of Loper Bright<\/em>, the Court does nothing to consider how its one-off analysis of Chevron<\/em> as a precedent affects the Court\u2019s ongoing jurisprudential understanding of other canons.<\/p>\n

If Chevron<\/em> is a precedent, isn\u2019t the presumption against preemption also a precedent? The rule of lenity? The presumption in favor of Native American rights? The rule against superfluities? One cannot respond that Chevron<\/em> was somehow different from other interpretive presumptions, and so can be treated differently. The Court dispelled that idea by analyzing Chevron<\/em> in general terms, just like all other interpretive presumptions. \u201cPresumptions have their place in statutory interpretation, but only to the extent that they approximate reality,\u201d Roberts writes, speaking generally of the canons, not just of Chevron<\/em> as a unique subspecies.75<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2265. <\/span> And more: the only legitimate \u201cinterpretive rules\u201d are ones that \u201chave guided federal courts since the Nation\u2019s founding.\u201d76<\/a><\/sup>See id. <\/em>at 2275 (Gorsuch, J., concurring).<\/span><\/p>\n

For now, let me conclude this point with two other observations about methodological stare decisis. The Court holds that Chevron<\/em> is overruled as a regime of interpretation, but the underlying rulings that have relied on it for forty years are not vacated. This is the same position taken by some state courts that have been more explicit about creating precedential methodological frameworks and then overruling them.77<\/a><\/sup>These developments were first detailed in Gluck, States as Laboratories<\/em>, supra <\/em>note 69.<\/span> But these rulings still create instability, as they are an invitation to lawyers to go in and relitigate under the new preferred methodology. This is precisely what happened in Michigan when it overruled one precedential statutory interpretation framework and replaced it with another.78<\/a><\/sup>Id.<\/em> at 1804; see <\/em>Robert A. Sedler, The Michigan Supreme Court, Stare Decisis, and Overruling the Overrulings<\/em>, 55 Wayne L. Rev.<\/span> 1911, 1939\u201340 (2009) (counting thirty-four overrulings by the textualist majority between 1999 and 2008 as compared to eight between 1989 and 1998); Joseph Kimble, What the Michigan Supreme Court Wrought in the Name of Textualism and Plain Meaning: A Study of Cases Overruled, 2000-2015<\/em>, 62 Wayne L. Rev. <\/span>347, 348 (2017) (counting ninety-six overruled cases by the Michigan Supreme Court between 2000 and 2015). <\/span><\/p>\n

The second observation is that this opinion does nothing to deal with the broader methodological issues that Chevron<\/em> helped reveal and then was unfairly blamed for. The Court complained that one major problem with Chevron<\/em> was that it made decisions unpredictable because it was not clear when it was triggered; these problems were caused by the fact that Chevron<\/em> relied on an ambiguity threshold and also because it was not clear whether Chevron<\/em> could be applied to resolve ambiguity before other canons might first be applied to do so.<\/p>\n

In other words, none of the canons are ranked, and that\u2019s the problem, not Chevron<\/em>. The Court has asked, for instance, \u201c[d]oes Chevron<\/em> displace the rule of lenity?\u201d79<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2271. <\/span> meaning whether application of the rule of lenity first might clarify ambiguity, and therefore prevent Chevron<\/em> from even being triggered, or whether Chevron <\/em>is triggered first. Loper Bright<\/em> solves none of this. We still do not know whether legislative history or any other substantive canon displaces the rule of lenity, or any other canon, because the Court does not definitely answer these questions\u2014ever. It is not that they do not come up\u2014see, for example, United States v. Hayes<\/em> (pitting legislative history against lenity).80<\/a><\/sup>555 U.S. 415, 429 (2009). <\/span> But, because the Court does not usually treat statutory interpretation methodological holdings with stare decisis effect, the same debates continue to cycle without resolution.<\/p>\n

Chevron<\/em>\u2019s famous footnote nine stated that Chevron<\/em>\u2019s deference presumption was triggered when \u201ca court, employing traditional tools of statutory construction\u201d could not \u201cascertain[] that Congress had an intention on the precise question at issue.\u201d81<\/a><\/sup>See <\/em>Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). <\/span> The problem has always been that those traditional tools are not ordered or ranked in a hierarchy. Because the tools are not ranked the same way from case to case, a \u201ctraditional tools\u201d rule is simply a whole-universe-open rule for statutory interpretation. Use whatever tools you want in whatever order and then decide if there is still ambiguity. And some of those tools\u2014like lenity, constitutional avoidance, federalism, and even sometimes text canons\u2014the Court has long held are themselves<\/em> triggered by ambiguity. Chevron<\/em>\u2019s mistake was to rely on all those tools in the first place.82<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2270 (\u201cExperience has also shown that Chevron <\/em>is unworkable. The defining feature of its framework is the identification of statutory ambiguity, which requires deference at the doc\u00actrine\u2019s second step\u201d). <\/span><\/p>\n

If one needs more examples of the inherent unpredictability of this open-canon universe, just look to Yates<\/em> v.<\/em> United States<\/em>, a textual-canon-vs.-textual-canon extravaganza pitting Justice Ruth Bader Ginsburg against Justice Kagan;83<\/a><\/sup>574 U.S. 528 (2015).<\/span> or to Lockhart<\/em> v.<\/em> United States<\/em> (Justice Kagan against Justice Sonia Sotomayor over the interpretation of a comma, with dueling textual canons);84<\/a><\/sup>588 U.S. 445 (2019). <\/span> or to Van Buren v. United States<\/em> (Justice Barrett against Justice Clarence Thomas);85<\/a><\/sup>593 U.S. 374 (2021). <\/span> or, for a debate about when lenity is trigged, to United States v. Davis <\/em>(Justice Gorsuch against Justice Kavanaugh).86<\/a><\/sup>588 U.S. 445 (2019). <\/span> Chevron<\/em>\u2019s demise solves none of this.<\/p>\n

With Chevron<\/em> gone, the unpredictability remains, and in fact will grow stronger because, at least until recently, and certainly in the lower courts, there was always a good chance that when the interpretive chips fell evenly, courts would go with the agency.<\/p>\n

V. The Opinion Evinces that Textualism Lacks a Coherent Theory of Originalism, Legislative Intent, and Fair Notice.<\/span><\/p>\n

Justice Scalia was no diehard statutory interpretation originalist. He rejected methods of interpretation that required courts to consider what the enacting Congress assumed the words they wrote to mean.87<\/a><\/sup>Gluck & Bressman, supra<\/em> note 28, at 951 (\u201cJustice Scalia sometimes emphasizes ordinary public meaning, at other times explicitly grounds canon application in how he believes the ordinary legislative drafter uses language, and sometimes does both. Obviously, the kinds of interpretive presumptions that lawyers might be expected to know are different from those that might be expected to approximate public understanding\u201d) (footnote omitted). <\/span> By contrast, his approach to constitutional interpretation was more originalist, a tension that puzzled some Court watchers.88<\/a><\/sup>Legislation aficionados, for example, were struck by Justice Scalia\u2019s opinion in District of Columbia v. Heller<\/em>, 554 U.S. 570 (2008), in which he utilized post-enactment legislative materials in a way he would have refused to utilize legislative history in order to determine the intent of the Second Amendment\u2019s Drafters.<\/span><\/p>\n

Loper Bright<\/em> makes clear that the link between textualism and originalism remains inconsistent and undertheorized.89<\/a><\/sup>I am not the first to point out that textualism is at war with itself. See, e.g.<\/em>, Tara Leigh Grove, Which Textualism?<\/em>, 134 Harv. L. Rev. 265 (2020) (<\/span>arguing in favor of formalistic, rules-bound textualism). <\/span><\/span> By now, most everyone knows that Justice Alito compared Justice Gorsuch\u2019s majority opinion in the Title VII sexual-orientation-discrimination case Bostock v. Clayton County<\/em> to \u201ca pirate ship\u201d that \u201csails under a textualist flag.\u201d90<\/a><\/sup>590 U.S. 644, 685 (2020) (Alito, J., dissenting).<\/span> The reason Alito did so was because he concluded that Gorsuch\u2019s approach was not originalist.91<\/a><\/sup>Id<\/em>.<\/span> Alito wrote: \u201c[O]ur duty is to interpret statutory terms to \u2018mean what they conveyed to reasonable people at the time they were written\u2019 . . . [T]he question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.\u201d92<\/a><\/sup>Id.<\/em> Note that Justice Alito\u2019s own theory, even as he chides Justice Gorsuch for his, is not fully consistent. What \u201creasonable people\u201d at the time might have understood a term to mean is not necessarily the same as \u201cwhether Congress did.\u201d<\/span><\/p>\n

In Loper Bright,<\/em> the Court claimed that \u201cevery statute\u2019s meaning is fixed at the time of enactment,\u201d93<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024).<\/span> and that Chevron<\/em> violated that precept by allowing for dynamic interpretive changes. Justice Gorsuch concurred this time, stating that:<\/p>\n

courts have sought to construe statutes as a reasonable reader would \u201cwhen the law was made.\u201d . . . In that way, textualism serves as an essential guardian of . . . fair notice. If a judge could discard an old meaning and assign a new one to a law\u2019s terms, all without any legislative revision, how could people ever be sure of the rules that bind them?94<\/a><\/sup>Id.<\/em> at 2285 (Gorsuch, J., concurring).<\/span><\/p>\n

This fair-notice-meets-originalism version of textualism, however, is not exactly the same as the textualism this Court has applied in recent years. As I have explained, the current conservative Justices now argue, \u00e0 la<\/em> Justice Barrett\u2019s article, that their interpretive partner is not Congress, but the ordinary person or the reasonable reader. For example, Justice Gorsuch has stated that \u201c[u]nless some feature of the law suggests that one or another of its terms bears a specialized meaning, our duty is to interpret Congress\u2019s work as an ordinary reader would.\u201d95<\/a><\/sup>Pulsifer v. United States, 601 U.S. 124, 161 (2024) (Gorsuch, J., dissenting).<\/span> Justice Kavanaugh has stated \u201c[t]he \u2018prime directive in statutory interpretation is to apply the meaning that a reasonable reader would derive from the text of the law.\u2019\u201d96<\/a><\/sup>Bostock v. Clayton Cnty., 590 U.S. 644, 784 (2020) (Kavanaugh, J., dissenting) (quoting William N. Eskridge, Jr.,<\/span> Interpreting Law: A Primer on How to Read Statutes and the Constitution<\/span> 33\u201335 (2016)). <\/span> Chief Justice Roberts has described the textualist inquiry as discerning \u201chow the word is ordinarily used.\u201d97<\/a><\/sup>Biden v. Nebraska, 143 S. Ct. 2355, 2368 (2023). <\/span><\/p>\n

While sometimes these newer textualist Justices discuss public meaning at the time of enactment, at other times they use a \u201cfair notice\u201d justification for this approach that applies notice to present<\/em> members of the public. For example, Justice Barrett, writing for the Court in the computer-crime case Van Buren v. United States<\/em>, was accused by Justice Thomas of not taking a sufficiently \u201coriginalist\u201d approach to statutory text.98<\/a><\/sup>Van Buren v. United States, 593 U.S. 374, 393 (2021).<\/span> Justice Thomas, in dissent, wrote that the majority was too focused on \u201cthe way people use computers today\u201d and criticized \u201c[t]he majority\u2019s reliance on modern-day uses of computers to determine what was plausible in the 1980s[, which] wrongly assumes that Congress in 1984 was aware of how computers would be used in 2021.\u201d99<\/a><\/sup>Id. <\/em>at 407 (Thomas, J., dissenting).<\/span><\/p>\n

The bottom line is that Chevron<\/em> got blamed for allowing a dynamism in statutory meaning that even some of the Court\u2019s textualists accommodate in other ways through their current ordinary meaning approach. It is true that agency updates to a statute for technical or other reasons are not always the same thing as an update that occurs because the ordinary understandings of words change. Nevertheless, an inquiry focused on what an ordinary person would understand a statute to mean, if truly in the spirit of fair notice to the regulated public, is necessarily dynamic <\/em>because the person encounters the statute in the present, not when it was drafted.<\/p>\n

VI. Is Loper Bright<\/em> Really a Statutory Opinion?<\/span><\/p>\n

Finally, the opinion purports to be one about statutory construction. The Court claims that the problem is that Chevron<\/em> does not reflect congressional drafting expectations, and that Chevron<\/em> conflicts with another statute, the Administrative Procedure Act (APA). The Court holds:<\/p>\n

Chevron <\/em>defies the command of the APA that \u201cthe review\u00acing court\u201d\u2014not the agency whose action it reviews\u2014is to \u201cdecide all <\/em>relevant questions of law\u201d and \u201cinterpret . . . statutory provisions.\u201d \u00a7 706 (emphasis added). It requires a court to ignore<\/em>, not follow, \u201cthe reading the court would have reached\u201d had it exercised its independent judgment as required by the APA. Chevron<\/em>, 467 U. S., at 843, n. 11.100<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2265 (2024).<\/span><\/p>\n

These statements imply that Congress could make the decision to reinstate Chevron<\/em>. But then the opinion cites Marbury<\/em>, the Court\u2019s favorite signal that it is about to take power for itself:<\/p>\n

The Framers also envisioned that the final \u201cinterpreta\u00action of the laws\u201d would be \u201cthe proper and peculiar province of the courts.\u201d The Federalist<\/span> No. 78, at 525 (A. Hamilton) . . . In the foundational decision of Marbury <\/em>v. Madison<\/em>, Chief Justice Marshall famously declared that \u201c[i]t is emphatically the province and duty of the judicial department to say what the law is.\u201d 1 Cranch 137, 177, 2 L. Ed. 60 (1803).101<\/a><\/sup>Id<\/em>. at 2257.<\/span><\/p>\n

And then it implies that its statutory discussion was simply a cover for a constitutional ruling. \u201cThe APA thus codifies for agency cases the unremarka\u00acble, yet elemental proposition reflected by judicial practice dating back to Marbury<\/em>: that courts decide legal questions by applying their own judgment.\u201d102<\/a><\/sup>Id<\/em>. at 2261.<\/span> If the APA merely codifies a constitutional rule, then the APA and congressional intent or desire are not relevant after all. The Constitution controls regardless. So, who cares if Chevron <\/em>is a fiction? Even if Congress said Chevron<\/em> was a truth, this part of Loper Bright<\/em> reveals it likely would not matter.<\/p>\n

Justice Kagan implicitly presses this point when she argues that Chevron<\/em> does indeed reflect Congress\u2019s preferences. She turns the majority\u2019s love of text-based canons against itself:<\/p>\n

Over the last four decades, Congress has authorized or reauthorized hundreds of statutes. The drafters of those statutes knew all about Chevron <\/em>. . . So if they had wanted a different assignment of interpretive responsibility, they would have inserted a provision to that effect. With just a pair of exceptions I know of, they did not. See<\/em> 12 U.S.C. \u00a7 25b(b)(5)(A) (exception #1); 15 U.S.C. \u00a7 8302(c)(3)(A) (exception #2). Similarly, Congress has declined to enact proposed legislation that would abolish Chevron<\/em> across the board. See<\/em> S. 909, 116th Cong., 1st Sess., \u00a7 2 (2019) (still a bill, not a law); H.R. 5, 115th Cong., 1st Sess., \u00a7 202 (2017) (same).103<\/a><\/sup>Loper Bright<\/em>, 144 S. Ct. at 2301 (Kagan, J., dissenting).<\/span><\/p>\n

Thus, per Justice Kagan, Congress knew about Chevron<\/em>, and showed itself capable of abolishing it when it wanted to. Under this Court\u2019s own typical interpretive practice, the implication is that Chevron<\/em> was approved.104<\/a><\/sup>One of the Court\u2019s most favored canons is the inclusio unius<\/em> or meaningful variation rule: when Congress expressly goes out of its way to specify an exception in one part of the Code, it shows that it is aware of the baseline and knows how to exempt from it when it wants. In such scenarios, the Court is loath to interpret such an exemption elsewhere. See, e.g.<\/em>, Azar v. Allina Health Services, 587 U.S. 566, 576\u201377 (2019); Keene Corp. v. U.S., 508 U.S. 200, 208 (1993); Russello v. U.S., 464 U.S. 16, 23 (1983). A second favored canon is the reenactment rule: \u201cCongress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.\u201d Lorillard v. Pons, 434 U.S. 575, 580 (1978). A third well-trodden rule is that when Congress is aware of a controversial opinion and has rejected countless efforts to override it, the Court will not interpret the statute otherwise. Flood v. Kuhn, 407 U.S. 258, 279 (1972); Bostock v. Clayton Cnty., 590 U.S. 644, 780, 782, 793\u201394 (2020) (Kavanaugh, J., dissenting).<\/span> If overruling Chevron <\/em>was really about the Court-Congress dialogue, these congressional signals would have mattered. That they did not matter, and indeed were not even addressed by the majority, invites the question of whether Loper Bright<\/em>\u2019s entire statutory discussion\u2014as puzzling as it is\u2014was mere window dressing.<\/p>\n

VII. Conclusion<\/span><\/p>\n

Statutory interpretation rules decide the majority of federal cases, and yet the theories underlying the field remain a mess. Theoretical messes produce muddled and inconsistent doctrine. Loper Bright <\/em>reveals these developments in full glory.<\/p>\n

Is it really true that all of the Court-created canons are illegitimate? Is it actually the case that any canon that does not reflect how Congress drafts is invalid? Can we sincerely claim that some canons are lawlike precedents and others have a lesser status? Why blame Chervon<\/em> for methodological unpredictability when the fault is the failure to rank all traditional interpretive tools? How can an insistence on interpretive originalism be squared with the Court\u2019s preferred fair-notice approach? These are just some of the questions the opinion raises, and that this Essay has explored.<\/p>\n

Loper Bright <\/em>is a big opinion and makes big pronouncements about the field of statutory interpretation. Those pronouncements are particularly dangerous\u2014or at the very least unhelpfully confusing\u2014to the extent they are wildly inconsistent with the Court\u2019s approach to interpretation in most other cases. And they are. If Loper Bright <\/em>were meant to be a one-off for the purpose of killing Chevron<\/em> and the Court did not mean to call large swaths of the enterprise into question, the Court should have been more careful and said less. If Loper Bright <\/em>is instead announcing a revolution in the Court\u2019s approach to interpretive canons, then we are facing an incredibly unstable and unpredictable road ahead. It would be preferable to know which it is.<\/p>\n

Either way, it seems long past time to bring these arguments to the surface. We have had decades of talk about the implementing devices of statutory interpretation\u2014talk about various canons, talk about text versus purpose, and so on. But opinions almost never address the big constitutional and theoretical questions that frame all of these debates. Nearly one hundred years after the New Deal, we are long overdue for a cogent, transparent debate about the nature of the judicial power, the Court\u2019s relationship to Congress, and what legitimatizes the enterprise of statutory interpretation\u2014and why.<\/p>\n

\n

[*]<\/a> Alfred M. Rankin Professor of Law, Yale Law School. Thanks to the organizers of the symposium and to Samarth Desai and Navid Kiassat, Yale Law School Class of 2026, for excellent research assistance.<\/p>\n\n\n

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