In the spirit of football season, let’s imagine a short-yardage run play. The running back barrels into a mass of bodies, and the ball disappears from sight. After the officials excavate the ball, they must determine whether the runner has made the line to gain.

Now, imagine that in every such ambiguous situation, the referees were required to defer to the home team’s assessment of whether they picked up the necessary yardage. After all, making accurate calls in that situation is notoriously challenging, and perhaps what the game needs is just a consistent rule of decision. 

For still greater consistency, just extend the rule further. In every ambiguous situation—every questionable penalty for holding, pass interference, whatever—the referees defer to the home team’s assessment.    

Unless some scheduling anomaly enables your team to play all its games at home, this shouldn’t strike you as desirable, let alone fair. Consistency may be a virtue of sorts, but it’s hardly preferable to accuracy.

And yet, this hypothetical is something like the sporting equivalent of the doctrines that require judges to defer to federal agency decisions. Except that deference applies even in those “neutral site” games before federal judges, who are otherwise duty-bound to be impartial between litigants.

Perceived judicial favoritism toward agencies has provoked enough backlash to compel the Supreme Court to address one form of deference, Chevron deference, in two cases in the same term.

Chevron deference—named after the 1984 Supreme Court case Chevron U.S.A. Inc. v. Natural Resources Defense Council—requires courts to defer to agency interpretations of ambiguous laws if those interpretations are “reasonable.”  Months ago, the Supreme Court agreed to hear one challenge to Chevron deference, Loper Bright v. Raimondo. Then, last week, it agreed to hear another, nearly identical case, Relentless v. Department of Commerce, raising the same challenge at the same time.

The likely reason is that Justice Ketanji Brown Jackson will be able to participate in the Relentless case even as she is recused from Loper Bright.

Although both cases are ostensibly about Chevron deference, the lower court decision in Relentless points to a problem beyond Chevron. In Loper Bright, the U.S. Court of Appeals for the D.C. Circuit ruled for the agency (the National Marine Fisheries Service) by following the Chevron two-step approach: The law, it held, was ambiguous, and the agency’s interpretation was reasonable and therefore lawful. 

In Relentless, by contrast, the 1^st U.S. Circuit Court of Appeals  mentioned Chevron, as it had to, but then proceeded to rule in favor of the agency based on an entirely separate presumption, seemingly of its own devising: “When Congress says that an agency may require a business to do ‘X,’ and is silent as to who pays for ‘X,’ one expects that the regulated parties will cover the cost of ‘X.’”

According to the 1st Circuit, the court did not need to answer “whether we classify this conclusion as a product of Chevron step one or step two.”

The 1st Circuit’s approach is more concerning because Chevron appears to do little real work. Instead, to rule in the agency’s favor, the court backfills ad hoc presumptions of dubious provenance.  If that’s the approach to which lower courts are accustomed, then one could wonder whether overruling Chevron would meaningfully reduce judicial deference to agencies.

And even as the Supreme Court is primed to pare down or eliminate Chevron deference, its latest order creates serious doubts that it’s exempt from the deeper pro-agency bias.  On Friday, the Supreme Court stayed a lower court order in Murthy v. Missouri, which prevented certain federal government agency officials from using “threats” or “coercion” to influence the content moderation decisions of social media platforms.  The case stems from the Biden administration’s efforts to mute dissenting views on issues of public concern, most notably the COVID-19 lockdowns.   

Apparently, the Biden administration felt strongly that threats and coercion are both valid and indispensable to its mandate. Thus, it petitioned the Supreme Court to set aside the restriction while the litigation is pending.  More surprising than the administration’s request was that six members of the court voted to grant it—without explanation.

In his dissent, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, explained why the majority’s approach was exceptionable. The district court restrained the government only after a thorough review of the evidence establishing the administration’s “coordinated campaign” of suppression.

The district court’s findings of fact alone spanned 82 pages. The Supreme Court has yet to review that record. 

Moreover, as the party challenging the order, the government has the burden of showing that it would be irreparably harmed absent the ability to harangue social media platforms into using the administration’s views as a touchstone for all content moderation.

One truly must speculate regarding the nature of that harm and how it could affect legitimate government interests rather than matters of crude partisan expedience.

Yet, speculation is all it will be, because the majority declined to explain how or why the government met its burden of proof.  Absent such an explanation, it appears the majority just deferred to the agencies’ assertion that they would suffer irreparable harm if the stay were not lifted.

No formal deference doctrine covers a case like this. Instead, this species of judicial deference stems from an ill-conceived form of judicial restraint. The judicial (self-)restraint view holds that unelected judges should interfere as little as possible with the decisions of the elected political branches. Agencies, though staffed by the unelected, are putatively answerable to the political branches, and thus they, too, are supposed to enjoy a free hand. 

Humility counsels a degree of restraint in all endeavors, but the Founders of our republic made it plain that they intended the federal judiciary primarily to restrain not itself, but the political branches of the federal government.

In the wake of the constitutional convention, Alexander Hamilton wrote that “a limited Constitution … can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

Since the mid-20th century, federal courts have exercised most of their zeal policing the conduct of state governments, local governments, and private associations. Meanwhile, their willingness to tolerate or rationalize the often inane conduct of the executive branch has only grown with the size and presumption of the administrative state.

Sometimes, this tendency has emerged in the case law under a particular name—Chevron, Auer, Seminole Rock, Skidmore, etc. But perhaps more often, it remains the unstated modus operandi for courts ruling in agency cases.

The result is a system in which the executive, abetted by a complacent or complicit Congress, operates in the constitutional borderlands under maximalist interpretations of its own authority. The courts, meanwhile, are expected to shrink within the bounds of their authority for fear that outside of judicial restraint, there is no judicial judgment, only judicial activism. 

Judicial overreach is real and can surely damage public confidence in the courts, but, as Alito pointed out in his dissent, so can judicial diffidence.

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