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Barrett Could Help Take a Bite Out of 'Chevron'

Amy Coney Barrett
President Donald Trump’s nomination of U.S. Circuit Court Judge Amy Coney Barrett to the Supreme Court will have effects on regulatory agencies like the FCC. (Image credit: Chip Somodevilla/Getty Images)

Judge Amy Coney Barrett, President Donald Trump’s pick to succeed the late Ruth Bader Ginsburg on the Supreme Court, could well help shift the Supreme Court’s view of how much deference to give decisions by agencies like the Federal Communications Commission.

The doctrine of Chevron deference, established by the Supreme Court in the 1984 case of Chevron U.S.A., Inc. vs. Natural Resources Defense Council, established the legal test for when courts should defer to the expertise of a regulatory agency. 

Andrew Jay Schwartzman, a veteran watcher and participant in federal appeals, concedes there is little track record to go on, but said, looking at her general philosophy, “I would speculate that she would likely be willing to consider modifying or overruling Chevron. Similarly, she might be disposed to revisit Supreme Court jurisprudence on nondelegation.” (Barrett’s nomination could lack the necessary votes, given the COVID-19 diagnoses of some Republican senators.)

Chevron doctrine was central to the Supreme Court’s 2005 decision in NCTA v. Brand X Internet Services, which upheld the FCC’s authority to classify broadband as an information service not subject to mandatory access common-carrier regulations. 

In Brand X,  the High Court ruled that Chevron deference trumped an appeals court decision because that appeals court had found the statute vague and, in such cases, the court should have deferred to the federal agency's subject matter expertise, in this case the FCC.  

That finding has left different FCCs to define and redefine internet access, and has prompted calls for Congress to step in and do its duty to clarify the statute.

The Wit of ACB

Judge Amy Coney Barrett once clerked for Supreme Court Justice Antonin Scalia, who was noted for the lively language in his opinions and dissents — his pizza-delivery analogy in the Brand X decision on the “telecom/information services” definition of internet access leaps to mind. 

Barrett displayed some of that liveliness in a decision involving AT&T and robocalls, a decision that went in AT&T’s favor.

“The wording of the provision that we interpret today is enough to make a grammarian throw down her pen. The Telephone Consumer Protection Act bars certain uses of an ‘automatic telephone dialing system,’ which it defines as equipment with the capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator,’ as well as the capacity to dial those numbers,” she wrote. “We must decide an issue that has split the circuits: what the phrase ‘using a random or sequential number generator’ modifies.

“We’ll save the intense grammatical parsing for the body of the opinion — here, we’ll just give the punchline. We hold that ‘using a random or sequential number generator’ modifies both ‘store’ and ‘produce.’ ” 

In the ensuing opinion, her parsing was indeed intense: “As the Eleventh Circuit explained, ‘[w]hen two conjoined verbs (‘to store or produce’) share a direct object (‘telephone numbers to be called’), a modifier following that object (‘using a random or sequential number generator’) customarily modifies both verbs.’ ” — JE

Potential fellow conservative Justice Brett Kavanaugh is on the record as having issues with Chevron, which gives more weight to an agency’s reading of ambiguous statues given the agency’s subject matter expertise.

Kavanaugh had more reason to weigh in as a former member of the U.S. Court of Appeals for the D.C. Circuit, which oversees appeals of agency decisions. Barrett, by contrast, has been a member of the 7th U.S. Circuit Court of Appeals — comprising Illinois, Indiana and Wisconsin and where the issue of Chevron deference does not get a lot of exercise — for only three years. But Barrett is an originalist who could look at the separation of powers and decide, as other legal conservatives have, that Congress is delegating too much power to agencies, helped by courts’ excessive deference.

Justice (and Republican appointee) Neil Gorsuch, a former member of the 11th circuit, has argued that while agencies should get deference for technical expertise in their subject areas, it should be up to the courts to do the clarifying of vague statues. He argues that giving federal agencies that power runs into both equal protection and separation of powers issues. 

The legal doctrine of nondelegation means Congress is not supposed to delegate its power to agencies or private entities without sufficient principles on which to base the exercise of that power.

Conservatives argue that Chevron, combined with insufficient adherence to nondelegation, has contributed mightily to the power of regulators and the ballooning of the administrative state.

Randolph May, president of the Free State Foundation, definitely sees Barrett helping shift the court on the issues. He thinks that is a good thing, but said the shift is likely to be “more modest than melodramatic, with the array of agencies continuing to carry out their core missions.” He also said that was likely to happen whether it was Amy Coney Barrett or some other appointee “in the same mold.”

“I suspect that, in a proper case, the Court will substantially curtail Chevron’s application, if not jettison it completely, and also that it will reinvigorate the nondelegation doctrine,” May wrote for the Yale Journal on Regulation. “But the end result of these jurisprudential changes most likely will be only a modest alteration in the size and scope of the administrative state's present power.”

One thing Barrett definitely knows about is audio and video in federal courts, something C-SPAN and Fix the Court have been pushing the Supreme Court to add for years. Currently the court provides audio, in some special cases, same day, but not live and no video.

The late Justice Antonin Scalia, for whom Barrett clerked, was a big opponent of cameras in the court. Although he supported televising oral arguments when he joined the court, Scalia later said he had concluded that TV would turn court proceedings into unhelpful, uncharacteristic sound bites.

But Fix the Court executive director Gabe Roth noted that in 2018, “Barrett was on the first-ever 7th Circuit panel that allowed cameras in the courtroom.” He also pointed out she was on numerous cases that were live streamed due to the pandemic. 

Scalia was also a big fan of Chevron early on, but softened in later years, Schwartzman said.