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.

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.

In what is being billed as a bicameral effort (that would be both Houses of Congress rather than both parties), a group of Republican Senators and House members, including Sen. Chuck Grassley (R-Iowa), chairman of the powerful Judiciary Committee, have introduced a bill that takes aim at the Chevron deference accorded federal agency expertise.

“For too long, unelected bureaucrats have relied on Chevron to expand their own authority beyond what Congress ever intended.  This has weakened our system of checks and balances and created a recipe for regulatory overreach," said Grassley, of the Separation of Powers Restoration Act. "The Constitution’s separation of powers makes clear that it is the responsibility of Congress, as the People’s representative, to make the law. And it’s the job of the courts – not the bureaucracy – to interpret the law. This bill helps to reassert those clear lines between the branches. By doing so, it makes the government more accountable to the People and takes a strong step toward reining in the regulators,” Grassley said.

The bill would only tweak the language in the U.S. Code on judiciary review of agency actions, but it makes a bid difference.

The language currently reads: "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action."

The bill would change "all relevant questions of law, interpret constitutional and statutory provisions" to "de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions and rules."

"De novo" means deciding from the beginning, or starting over, rather than starting from a point of deference to am agency judgment. The idea of the bill, as Republicans see it, is to take an agency's thumb off the scale of justice.

In addition to Grassley, others introducing/backing the bill included Sens. Orrin Hatch (R-Utah), John Cornyn (R-Tex.), Mike Lee (R-Utah), and Ted Cruz (R-Tex.).

The issue of Chevron has often come up regarding how the FCC exercises its regulatory authority.

Chevron is the deference that has been accorded agencies—per Supreme Court precedent—to interpret vague statutes. New Supreme Court Justice (and Republican appointee) Neil Gorsuch, for one, 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, and that giving federal agencies that power runs into equal protection and separation of powers issues. The issue was explored during Gorsuch's confirmation hearings, presided over by Grassley.

Democrats fear that weakening Chevron is a way to weaken the power of those agencies to protect air, water, privacy and much more—critics of the FCC's broadband regulation under former Democratic chairman Tom Wheeler, for example, argued that the commission was exceeding its authority in its interpretation of statute.

The Senate Judiciary Committee vote on the nomination of potential Supreme Court associated Justice Neil Gorsuch will have to wait at least another week.

The vote on his and two other nominations had been planned for Monday (March 27), but any minority member can delay the vote of any nomination the first time it is on the agenda and Chairman Charles Grassley (R-Iowa) indicated the minority had made that request.

Ranking member Dianne Feinstein (D-Calif.) pointed to the failure of Republicans to vote on the nomination of Merrick Garland to the seat opened by the death of Antonin Scalia, the seat Gorsuch was nominated to, as one sore point. During the hearing, she read out the names of some of nominees who got hearings and votes in the final year of a presidency, the reason Republicans gave for not holding a hearing on Garland after Scalia died in February of last year.

She said there was lots of time to vet and vote a nominee.

Another sore spot was the spending of millions of dollars in dark money on advertising either to promote Gorsuch or oppose Garland. "That sends a loud signal to me," she said, a signal that the Republicans ought to take note of as well in understanding the "depth of feeling" on her side about the nominee and the process.

"This [dark money] puts this side, in my view, in just a terrible position," she said, suggesting it creates a situation where the people who spend those tens of millions of dollars in dark money should think twice about it because it might just be "counterproductive."

The committee will hold another business session next Monday (April 3)  at 10 a.m. to vote on the nominations, where Gorsuch's nomination is expected to be approved.

Gorsuch has been a judge on the Tenth Circuit Court of Appeals, where he has written about his issues with Chevron Deference, the Supreme Court precedent for allowing agencies to interpret ambiguous statutes, something Gorsuch has suggested should be left to the courts given separation of powers and equal access issues, points he made in his four-day nomination hearing.

 He also signaled during those hearings that he would have at least an open mind toward cameras in the High Court, though the said it was something he had not thought a lot about.

 Gorsuch refused to be drawn into a debate about dark money and disclosure of political ads during questioning by Sen. Sheldon Whitehouse (D-Rhode Island) during his confirmation hearings.

 Whitehouse pointed to the $10 million ad campaign being mounted by supporters of his nomination, but whose actual backers had not been disclosed. The senator asked Gorsuch if there is a public interest in knowing who was contributing to that campaign. The veteran U.S. appeals court judge responded that if Congress wanted there to more ad disclosure, it had "robust authority" to do so, but that he was not going to be drawn into politics and that it was not his fault if Congress had not passed such a law requiring the disclosure of so-called dark money.

 Various Democratic legislative attempts to boost disclosure since the Citizens United decision have failed to gain traction, including with enough Democrats.

 Gorsuch did say that that there was a value in anonymous speech, which the Supreme Court had found in a case where it concluded that disclosure could be a weapon to help silence opposition.