Depoliticizing administrative law

Duke Law Journal

Volumn 58, Issue 8, 2009, Pages 2193-2230

  Sunstein, Cass R ^a   Miles, Thomas J ^b  

^a HARVARD LAW SCHOOL   (United States)

^b UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 68049107247     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (113)

1. See Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. Chi. L. Rev. 823, 825 (2006) [hereinafter Miles & Sunstein, Do Judges]
2. Thomas J. Miles & Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. Chi. L. Rev. 761, 768 (2008) [hereinafter Miles & Sunstein, Real World].
3. For a seminal study, see generally Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717 (1997). For a valuable study of the Supreme Court
4. see generally William N. Eskridge & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083 (2008).
5. Eskridge & Baer, supra note 2, at 1147.
6. Eskridge & Baer, supra note 2, at 1147.
7. Miles & Sunstein, Real World, supra note 1, at 767. These essays, focused on administrative law, should be seen as part of a large and growing area of empirical study. For a discussion and of this area and citations to relevant pieces
8. see generally Thomas J. Miles & Cass R. Sunstein, The New Legal Realism, 75 U. CHI. L. REV. 831 (2008).
9. Miles & Sunstein, Do Judges, supra note 1, at 836.
10. See Eskridge & Baer, supra note 2, at 1153-57.
11. See Miles & Sunstein, Do Judges, supra note 1, at 851.
12. see also Eskridge & Baer, supra note 2, at 1156-57 (detailing a somewhat different set of numbers spanning over a longer period of time).
13. If agency decisions have an ideological skew, of course, it might be desirable to have a high level of invalidations; and if the agency's skew leads to a high level of unlawful "liberal" decisions, then a percentage of invalidation of such decisions would be nothing to deplore. The problem is that even if agency decisions are skewed in one or another direction, a large and predictable split between Republican and Democratic appointees would be hard to defend, and would justify a high level of concern. Of course we are aware that one person's skew is another person's neutral principle; if, for example, the Environmental Protection Agency takes a proenvironmental turn, or the National Labor Relations Board becomes more sensitive to the interests of employers, there would be no "skew" from the right point of view. We do not mean to say anything controversial on this count; we use the term "skew" as a simple placeholder for agency departures from the correct approach to the relevant area of the law.
14. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
15. Id. at 843-44.
16. See E. Donald Elliott, Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts, and Agencies in Environmental Law, 16 Vill. Envtl. L.J. 1, 8 (2005).
17. Chevron, 467 U.S. at 864.
18. Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
19. Id. at 43; see also 5 U.S.C. § 706 (2006).
20. State Farm, 463 U.S. at 37-38.
21. See Miles & Sunstein, Real World, supra note 1, at 812.
22. See 28 U.S.C § 46 (2006) (providing for panels consisting of three judges without specifying a method of assignment).
23. Emerson H. Tiller & Frank B. Cross, A Modest Proposal for Improving American Justice, 99 Colum. L. Rev. 215, 216-17 (1999) (explaining that random assignment has been widely adopted in the federal appellate system, by rule or practice, as it is thought to limit intracircuit judge shopping and ensure even caseload distribution among judges).
24. See Peter L. Strauss, Overseers or "The Deciders"-Courts in Administrative Law, 75 U. CHI. L. REV. 815, 823 (2008).
25. See infra notes 35-36, 46 and accompanying text.
26. See, e.g., Thomas O. Mcgarity & Wendy E. Wagner, Bending Science: How Special Interests Corrupt Public Health Research 2-7 (2008).
27. Recall the theoretical possibility that if agencies show a predictable skew (in the sense that they are biased in some objectionable way), then some sort of skew, on the part of courts, might be necessary to ensure neutrality. The problem is that it cannot be the case that both Republican and Democratic appointees are supplying a corrective to any skew-they disagree, and hence cannot both be right!
28. See Frank B. Cross, Decision Making in the U.S. Courts of Appeals 11-38 (2007)
29. Cass R. Sunstein et al., are Judges Political? 87-106 (2006).
30. See generally Miles & Sunstein, Do Judges, supra note 1 (outlining the studies and reporting the results).
31. Miles & Sunstein, Real World, supra note 1 (same).
32. In the case of agency interpretations of law, we examined all cases citing Chevron between 1990 and 2004 (253 in total); in the case of arbitrariness review, we examined all arbitrariness and substantial evidence cases between 1996 and 2006 (653 in total).
33. We also studied whether the agency's decision was issued in a Republican or Democratic administration. In some domains, we found that Republican appointees are more likely to vote to uphold decisions of a Republican administration than those of a Democratic administration, and that Democratic appointees show a similar kind of favoritism. In Chevron cases, for example, Democratic appointees show a 70 percent validation rate under Democratic administrations and 61 percent validation rate under Republican administrations, while Republican appointees show a 59 percent validation rate under Democratic administrations and a 68 percent validation rate under Republican administration. Miles & Sunstein, Do Judges, supra note 1, at 850. In general, however, the liberal-conservative coding is a more accurate way of exploring political voting on the courts of appeals, and so that division is our emphasis here.
34. Miles & Sunstein, Real World, supra note 1, at 777.
35. See Sunstein et al., supra note 21, at 48-54 (finding no significant effects of political party in criminal appeals, federalism, takings, punitive damages, and standing).
36. Miles & Sunstein, Do Judges, supra note 1, at 849.
37. Id. at 826-27.
38. Id. at 859.
39. Id. at 855.
40. Id. at 863.
41. Roger Brown, Social Psychology 200-45 (2d ed. 1995).
42. Cass R. Sunstein, Why Societies Need Dissent 111-44 (2003).
43. See Brown, supra note 37, at 244
44. Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155, 2173-74 (1998).
45. There are other possible explanations. It may be, for example, that Republican and Democratic appointees vote as they would as individuals on unified panels, and that what needs explanation is the absence of politicized voting on mixed panels. On this view, group polarization is not involved; mixed panels serve to moderate judges' tendencies, and that is the key mechanism. For our purposes, it does not seem necessary to settle on a final explanation.
46. Miles & Sunstein, Real World, supra note 1, at 767.
47. Id. at 777.
48. Id. at 791.
49. Id. at 788.
50. Seven of the Justices were appointed by Republican presidents: Justice David H. Souter, Justice John Paul Stevens, Justice Sandra Day O'Connor, Justice Anthony M. Kennedy, Justice William H. Rehnquist, Justice Clarence Thomas, and Justice Antonin Scalia. Justices Ruth Bader Ginsburg and Steven Breyer were appointed by Democratic President Clinton.
51. For an illuminating treatment, covering a large time period, see Eskridge & Baer, supra note 2, at 1153-57.
52. Miles & Sunstein, Do Judges, supra note 1, at 872-80 tbl.1. The data set extends from 1989 to 2005, and hence Chief Justice John Roberts and Justice Samuel Alito are not included. An effort to extend the study to the present would of course include a number of their votes, but the sample size, for those Justices, would remain too small to permit reliable comparisons.
53. Id. at 877 tbl.1.
54. Id. at 880 tbl.1.
55. Id. at 872 tbl.1.
56. Id. at 872-80 tbl.1.
57. Id. at 874 tbl.1.
58. Id. at 879 tbl.1.
59. Id. at 874 tbl.1.
60. Id. at 875 tbl.1.
61. Id. at 879 tbl.1.
62. Id. at 872-80 tbl.1.
63. Id. at 835.
64. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984) (explaining that a reviewing court must ask "[f]irst. .. whether Congress has directly spoken to the precise question at issue," and if it has not, whether the agency's interpretation is "reasonable").
65. See Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) ("The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency.").
66. See Miles & Sunstein, supra note 3, at 846-50 (providing empirical support for the contention that judicial policy preferences play a role in judges' decisions about whether agencies have behaved unreasonably).
67. This point is put in a broader context in a highly instructive essay by Professor Posner. Eric Posner, Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Political and Constitutional Reform, 75 U. CHI. L. REV. 853, 870 (2008) ("[I]t should now be clear that evaluating justices is more complicated than counting up their liberal and conservative votes.").
68. See supra note 31 and accompanying text.
69. See supra note 43 and accompanying text.
70. See Miles & Sunstein, Do Judges, supra note 1, at 849 tbl.7.
71. For a discussion, see infra note 92 and accompanying text.
72. See supra notes 33-34 and accompanying text.
73. Naturally, the argument works the other way for politicized voting that favors an agency. An increase in the chance that an agency faces a friendly reviewer may reduce the resources an agency spends in establishing the validity of its decision, and this may be undesirable when closer inquiry is warranted.
74. The best discussion remains the book by Professors Mashaw and Harfst. Jerry L. Mashaw & David L. Harfst, the Struggle for Auto Safety 225 (1990) (discussing the effects of aggressive judicial review on agency rulemaking, and noting that "[t]he result of judicial requirements for comprehensive rationality has been a general suppression of the use of rules").
75. See Heather K. Gerken, Second-Order Diversity and Disaggregated Democracy, 118 Harv. L. Rev. 1099, 1102-03 (2005) (explaining "first-order diversity" as "the normative vision associated with statistical integration, the hope that democratic bodies will someday mirror the polity" and "second-order diversity" as "involv[ing] variation among decisionmaking bodies, not within them. ... [and] foster[ing] diversity without mandating uniformity").
76. See Louis D. Brandeis, Other People's Money and how the Bankers USE IT 92 (1914).
77. Robert J. Hume, Administrative Appeals to the U.S. Supreme Court: The Importance of Legal Signals, 4 J. Empirical Legal Stud. 625, 632-33 (2007) (explaining that petitions are less likely to occur when a court invalidates an agency decision as arbitrary and capricious because, "[u]nlike cases based on the Constitution, an agency's interpretation of a statute, or some other substantive grounds, cases that require an agency to improve its reasoning are normally viewed as frivolous by the Justices and denied review").
78. Ernest A. Young, Institutional Settlement in a Globalizing Judicial System, 54 DUKE L.J. 1143, 1194 & n.215 (2005).
79. United States v. Mead Corp., 533 U.S. 218 (2001).
80. For details, see generally Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187 (2006).
81. Mead, 533 U.S. at 226-27.
82. Skidmore v. Swift & Co., 323 U.S. 134 (1944). An exceedingly valuable empirical study is Kristin Hickman & Matthew Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. REV. 1235 (2007).
83. Mead, 533 U.S. at 228 ("The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency's care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency's position." (footnotes omitted)).
84. See id. at 229-30 (characterizing express congressional authorizations of notice-andcomment rulemaking and formal adjudication as "good indicator[s] of delegation meriting Chevron treatment" because they "tend[] to foster the fairness and deliberation that should underlie a pronouncement of such force").
85. See Adrian Vermeule, Mead in the Trenches, 71 GEO. WASH. L. REV. 347, 347 (2003) (calling the D.C. Circuit's "Mead-related work product. .. in a nontrivial number of cases, flawed or incoherent").
86. Miles & Sunstein, Do Judges, supra note 1, at 846.
87. Relevant data and arguments can be found in Eskridge & Baer, supra note 2 passim.
88. A possible doctrinal solution, in some domains, would be to prefer rules over standards. It has been shown that this approach can serve to reduce the effects of judicial ideology. See Adam B. Cox & Thomas J. Miles, Judicial Ideology and the Transformation of Voting Rights Jurisprudence, 75 U. CHI. L. REV. 1493 (2008). In the context at hand, however, it is difficult to see how this solution might be made to work.
89. William F. Pederson, Jr., Formal Records and Informal Rulemaking, 85 YALE L.J. 38, 60 (1975) ("It is a great tonic to a program to discover that even if a regulation can be slipped or wrestled through various layers of internal or external review [inside the bureaucracy]( the final and most prestigious reviewing forum of all-a circuit court of appeals-will inquire into the minute details of methodology... .").
90. See Miles & Sunstein, Do Judges, supra note 1, at 869 ("[S]o long as there is some room for review, political differences will matter at the point where that review occurs. If, for example, the agency must be upheld unless the statute is entirely without ambiguity, then litigants will challenge agency action only when the statute is (arguably) entirely without ambiguity, and then agencies will interpret statutes aggressively in their preferred directions.").
91. See id. at 869-70 (discussing "[t]he inevitability of politics").
92. See Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1745-48 (2002).
93. See Richard L. Hall & Frank W. Wayman, Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees, 84 AM. POL. SCI. REV. 797, 798 (1990) ("Students of Congress have long contended that interest group influence flourishes at the committee level(")
94. Ken Kollman, Inviting Friends to Lobby: Interest Groups, Ideological Bias, and Congressional Committees, 41 AM. J. POL. SCI. 519, 522 (1997) ("[A] general consensus exists( that interest groups are vital to many committee decisions.").
95. See David Epstein & Sharyn O'halloran, Delegating Powers 26 (1999)
96. See Jacob E. Gersen & Adrian Vermeule, Chevron as a Voting Rule, 116 YALE L.J. 676, 676 (2007) ("A voting-rule version of Chevron would. .. allow more precise calibration of the level of judicial deference over time, and holding the level of deference constant, a voting rule would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron.").
97. See, e.g., 15 U.S.C. § 78d(a) (2006) (requiring bipartisan composition of the Securities and Exchange Commission).
98. Daniel E. Ho, Congressional Agency Control: The Impact of Statutory Partisan Requirements on Regulation 35 (Feb. 12, 2007) (unpublished manuscript), available at http://dho.stanford.edu/research/partisan.pdf (reviewing the empirical literature and finding that partisan affiliation of Federal Communications Commission commissioners correlates with voting patterns, even after controlling for the party of the appointing president).
99. See Tiller & Cross, supra note 16, at 215 (calling for mandating politically mixed panels rather than pure random assignment).
100. See supra note 16 and accompanying text.
101. For a relevant discussion, see generally David A. Strauss & Cass R. Sunstein, The Senate, the Constitution, and the Confirmation Process, 101 YALE L.J. 1491 (1992).