What Loper Bright Illustrates About the Incoherence of the Court's Statutory Interpretation Theory

Abbe Gluck

  Loper Bright is a maddening opinion for statutory interpretation afficionados. The Court killed Chevron based on purported theories of statutory-interpretation separation of powers, but those theories do not actually reflect the Court's usual practice, despite the Court's claims. My new piece in the Harvard Journal of Legislation details this argument. Here's an excerpt:

   The opinion reads like a statutory-interpretation manifesto—and suggests that Chevron 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 doctrine was uniquely unworkable.

  Actually, no. Most of the Court’s interpretive canons do not reflect congressional drafting practice, and the Court usually does not view that fact as delegitimizing. Some justices even now expressly disavow interest in congressional practice for purposes of 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 “ordinary meaning” and ordinary people, rather than congressional “insiders.”  And contra Loper Bright, the Supreme Court creates new canons all the time—Chevron was not an outlier in that regard. And despite the stare decisis discussion in the opinion,, the Court does not usually treat canons as precedents or as common law that can be overruled.

  As to Chevron’s “unworkability,” as the Court charged, any unworkability associated with Chevron was due to the Court’s own failure, across all of statutory interpretation, to create any predictable hierarchy of interpretive rules with stare decisis effect and the Court’s decisions to make ambiguity trigger most of the Court’s interpretive doctrines. Chevron shared those features—a lack of interpretive order and an ambiguity threshold—with many other interpretive rules, to be sure, but only because Chevron itself famously turned on the “traditional tools of statutory interpretation,” not because of something inherent to Chevron. The Court itself created this unworkable regime for all statutory questions. Chevron’s demise will not cure it.

  If one takes Loper Bright’s pronouncements about statutory interpretation seriously, most of the Court’s 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.  A critical part of any inquiry into statutory interpretation is what the prevailing theory tells us about the interbranch relationship. Loper Bright is purportedly an opinion about precisely that, but the Court’s inconsistent pronouncements obscure, rather than clarify, any theory of statutory-interpretation separation of powers. The stakes are especially high, as Loper Bright transfers even more interpretive authority to courts. It is more important than ever that statutory interpretation have a legitimate foundation.