In

the opinion in Loper-Brite, Chief Justice John Roberts invoked the Skidmore defense a couple of times. What was his position on it? Was he telling courts, use this? He said it's available.

It's still available. Why? Because it's a doctrine that still puts the court in the driver's seat because it's the court that gets to decide whether they think it's appropriate to defer to the agency, whether they're persuaded that the agency has the best interpretation of the statute. Chief Justice Roberts in the majority opinion in Moper-Brythe says, that's fine. And agencies, he says, are still deserving of respectful consideration for their views. So a court should certainly hear agencies out. And if they are persuaded, then sure, they follow them. You know, some people would say it's not really a deference at all. What's always there for any litigant, if you persuade the judge that you have the best interpretation of a judge, will agree with you. And so it may not really give agencies a whole lot of weight behind what they do. But the reality, of course, is that a lot of these cases arise under statute and with issues that are very technical. And judges did before Chevron side with agencies you know more often than not. And one might might expect the same to happen afterwards except we have you know a different composition to the judiciary today. I think the Supreme Court's decision to overrule Chevron is sending a signal throughout the lower courts that you should be skeptical. Notwithstanding these passing references to Stidmore and the possibility that it still might apply, it's very clear, I think the message from the Supreme Court is be very skeptical of agency power. And that not only in the overruling of Chevron, but it's in the court's recent invocation of the major questions doctrine and in some other cases as well.

a Bloomberg Law Review of decisions issued between June 28th and July 26th, federal courts didn't refer to Skidmore in 19 of 20 rulings on agency actions that cited Loper-Bright, which is the case that did away with the Chevron Doctrine. And federal judges ruled against agency interpretations in 13 out of those decisions. What does that tell you?

It's not surprising for one, Gidmore deference, it's not obligatory. So there's no reason that courts need to decide on the basis of Gidmore. There's no reason for courts to cite Gidmore. The court in Loperbrite was saying to lower courts, you all figure it out and come up with your own best reading of the statutes and That doesn't leave a whole lot of room for deference of any kind even an optional kind of deference like Gidmore I

remember during the oral arguments in the Loperbright case the chief justice saying something like, we haven't, you know, relied on Chevron in more than a decade. But the lower courts

relied

on Chevron, didn't they?

key words, Chevron is overruled, were so important as it signaled to the lower courts, don't cite Chevron anymore, you have to figure it out. And you know, that's a, I mean, I've kind of thought of it as a legal earthquake. I mean, it's really shaken things up here after 40 years of courts citing Chevron, citing Chevron, citing Chevron. It was one of the most widely cited administrative law decisions, really one of the more widely cited of any Supreme Court decisions of all time. And now the court says, stay away from that, don't cite it. And so it also, I think, has around it kind of a penumbra that is apparently telling lower court judges, be skeptical of deference of any kind. Because again, your job as judges is not to defer to anyone, but to make the best reading of the statute yourself. And yes, you can listen to the agency, give the agency respectful consideration. that doesn't leave much room for a notion of deference if it's the courts that are supposed to be deciding this. Deference of any kind, even a voluntary deference, even though the Loperbrite opinion, as you can rely on if you're persuaded by the agency. But if you're a lower court judge and you're going to agree with the agency, then just lay out the argument for why the best reading of the statute is the same one that the agency has made. No need to cite it more, just lay it out.

And you sort of referred to this, I think. Bloomberg Law, the review found that district court decisions on requests to freeze Biden administration regulations show a partisan pattern. Seven of the eight rulings that paused the rules were Republican-appointed judges. Democratic appointee handed down the one rejecting an injunction bid. So does it seem as if the more conservative judges are the ones that are anti-agency and are going to rule against agencies if they can, whereas the more liberal judges will rule for agencies? It's generally

been the pattern. It's generally been the pattern in a very subtle way over the past several decades. But certainly in recent years we've seen a greater degree of polarization in the judiciary that kind of mirrors the polarization in society at large. And this is a matter, I think, of considerable concern generally about our court system, but it also will manifest itself in judges of different, you

know,

political, partisan, ideological persuasions coming to different readings of the statutes. empirical evidence that indicates that. And we might expect that judges that are skeptical of agency power are hearing this signal that the Supreme Court is sending in Loper-Brythe much more loudly and strongly than our other judges, perhaps. Now, it may be the case, of course, that there will be judges that are willing to side with the too and they're going to say the best reading is the agency's interpretation. In some sense we're going to have some dueling opinions I suspect in various different courts around the country. Ultimately perhaps having more of these conflicts or what we call circuit splits that the Supreme Court will have to resolve. And it's going to go up to a majority of the Supreme Court that I think has demonstrated itself to be extremely skeptical of agency authority.