If federal appeals court Judge Raymond Kethledge were chosen to fill Justice Anthony Kennedy’s seat on the Supreme Court, his thoughts on the “Chevron doctrine”—how much weight judges should give to federal agencies—are likely to fall under the spotlight.
Kethledge, a President George W. Bush appointee to the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit, took aim at so-called Chevron deference. Under this doctrine, courts are required to defer to “reasonable” agency interpretations of statutes that are ambiguous.
“One may fairly ask … whether the doctrine allocates core judicial power to the executive—or perhaps simply blocks the exercise of judicial power in cases where the doctrine applies,” Kethledge wrote in an article last year, adapted from a lecture he gave at the University of Michigan law school, his alma mater.
He added: “Most observers condemn judicial activism as an arrogation of legislative power to the judiciary. It is not clear to me why the result is any better when the arrogation is done by the executive.”
Kethledge’s skepticism of Chevron deference, while not unique among conservative federal appeals judges, has won him praise and would align with President Donald Trump’s first pick for the Supreme Court, Neil Gorsuch, the former Tenth Circuit federal appeals judge. In one opinion, Gutierrez-Brizuela v. Lynch, Gorsuch said the Chevron doctrine allows “executive bureaucracies to swallow huge amounts of core judicial and legislative power.”
Two of Trump’s advisers on judicial nominations—White House Counsel Donald McGahn and the Federalist Society’s Leonard Leo—both believe courts have ceded too much power to executive agencies. The elevation of Kethledge would come at a time when conservative criticism of the decades-old doctrine on court deference has reached a new pitch.
Justices Gorsuch and Clarence Thomas just this past term lamented the court’s refusal to take up the case Garco Construction v. Speer. The justices said the court was passing up, in their words, “another opportunity” to revisit Chevron deference.
And perhaps as a note for a successor, Kennedy, for whom Kethledge clerked, took a parting shot at Chevron last month—criticizing lower courts for their “reflexive deference” to federal agencies.
“It seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision,” Kennedy wrote in a concurrence in Pereira v. United States.
Kethledge’s words on Chevron have earned notice and praise from at least one leading conservative member of the bar: Chuck Cooper of Cooper & Kirk.
“By enforcing a high threshold for ambiguity, and by demanding that agencies justify their decisions, he has done his part to keep Article III power in Article III courts,” Cooper wrote in a recent Yale Law blog post.