In June 2024, the U.S. Supreme Court eliminated the judicial deference
federal agencies previously received for their statutory interpretations,
overturning the Court’s landmark 1984 decision in Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc. While Chevron was never binding
on state courts, where the balance of powers and state constitutions may
require different or no deference to agencies, numerous states have adopted
Chevron deference, Skidmore weight, or similar deference regimes for
judicial review of agency legal interpretations. Despite these developments,
little scholarly attention has been paid to how and why states have developed
administrative law’s deference doctrines, how the doctrines have changed
over time, or how they may further evolve in light of Chevron’s demise at
the federal level.
In our contribution to this Fourth Annual Public Law in the States
Conference, we provide a literature review of and update on the scholarship
to date. Ultimately, we encourage states to not follow the Supreme Court in
lockstep when it comes to judicial review of agency statutory interpretations.
Federal and state governments differ in important respects, and judicial
deference similar to Chevron may still have great benefits in at least some
states. We also present the preliminary findings from a comprehensive dataset
that one of us, Neena Menon, has compiled on judicial deference in state
courts that examines the relationship between state-level politics and the
corresponding changes in deference regimes. This dataset provides a more
nuanced look at the political ties of state courts that choose between different
deference regimes. The findings from this dataset are especially important to
our understanding of the political dynamics of Chevron—a doctrine that
conservatives seemed to embrace originally and have since criticized (and
perhaps vice versa for progressives). Tracking the political makeup of state
courts during times of deference regime change can show whether and how
the politics of courts can affect the relationship between states’ judicial and
executive bodies.
