In 2018, during Justice Brett Kavanaugh’s Senate confirmation hearing, Klobuchar questioned Kavanaugh on his views, wherein he stated that “Chevron serves good purposes… [AND] courts should not be unduly second-guessing agencies.”
In 2020, during Justice Amy Coney Barrett’s confirmation process, in response to written questions submitted by Klobuchar, Barrett affirmed that was “a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis.”
SENATOR KLOBUCHAR:
OK. On to another policy that's pretty important. It's the Chevron case. And in your Gutierrez concurrence, and this is where you wrote the actual opinion and then wrote your own concurring opinion, which I noted is better than writing a dissent to your own opinion, but you wrote a concurrence to your opinion, and to me, this move, as you imply in your concurrence, or you don't even imply, you say, it could have titanic real world implications when it comes to rules -- 13,500 cases on the books since 1984. In your book, you say you don't overturn precedent unless it is universally accepted, affirmed by courts repeatedly, and have extensive reliance on the decision.
So my question is, why in your concurring -- and Senator Feinstein asked you the facts of the case. I do not want to talk that because she already did and I got your answer, that was good. But in the concurring opinion, you say, there is an elephant in room with us today. Sorry guys, he wasn't referring to the Republican Party.
There is an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is, Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design.
Quote, maybe the time has come to face the behemoth, end quote. That sounds to me like again, you are going a step further and talking overturning a major precedent. I want to know if that's what you mean, if you think it should be overturned, and if you've considered the ramifications of that when Justice Scalia himself was the original champion of the Chevron doctrine.
GORSUCH:
Senator, all I can do is explain to you why I was concerned Chevron in that case. And I was concerned because again, we had an undocumented immigrant who was following judicial precedent --
KLOBUCHAR:
I really do understand the facts. But I want to know why you did a concurring opinion to your own opinion in order to make this broader sweep, and talk you said, the time has come to face the behemoth. You were clearly talking overturning Chevron.
GORSUCH:
Senator, I'm trying to answer your question as best I can. And I was concerned the due process implications that arise in cases like Mr. Gutierrez, where an individual, who isn't aided by an army of lawyers or lobbyists -- can they anticipate changes in law by agencies back and forth willy-nilly, even to the point of overruling judicial precedent.
And that's a due process concern I raised. I raised an equal protection concern the ease with which individuals like Mr. Gutierrez can be singled out by political branch in a way that judges are supposed to protect. I raised a separation of powers concern whether judges should be the ones saying what the law is.
KLOBUCHAR:
But as a Supreme Court justice, if you were to make this decision to overturn Chevron, would you consider the implications on an all of the cases in the U.S. and in the rules and the uncertainty it would create?
GORSUCH:
Oh, goodness Senator -- yes.
KLOBUCHAR:
Would you overturn it? Is that what you're -- is that what this means when you talk , maybe it's time to face the behemoth?
GORSUCH:
Senator, my job as a circuit judge is when I see a problem, I tell my bosses it. Like any good employee. And my job is there, as I conceived it, was to say hey, listen, look at some of the implications, the real world implications of what we're doing here.
KLOBUCHAR:
OK, but you would be the boss if you were the Supreme Court justice. And what rule do you think should replace it? Should we have de novo review? Is that better? What do you think should replace Chevron, deference?
GORSUCH:
Senator, I don't prejudge it. I can tell what did preexist it was Skidmore deference, which was written -- an opinion written by Justice Jackson, actually. That's what preexisted. So there was deference before. And we had the administrative state for 50 years. And agencies would issue rules and decisions.
I don't know what all the consequence would be, and I would pledge to you, I wasn't thinking being a Supreme Court justice then. I was identifying an issue for my bosses. If I be so fortunate as to become a justice, I would try and come at it with as open a mind as man can muster. And I would tell you, remind you, what I bear in mind, David Sentelle -- when I was with him as law clerk, issued a panel opinion at the beginning of my year with him going one way, and then by the end of the year, wrote for the en banc court, the full court, reversing himself.
Now some think that's -- that doesn't show a lack of sufficient steel. I think that shows an open mind and a lack of ego that a judge should bring to bear when he or she puts on the robe. And that's what I would commit to you.
SENATOR KLOBUCHAR. One last question in this area on consumers.
The major rules doctrine actually raises questions to me your view of Chevron, and as you know, it is that 1984 case—I would think it is settled law, but I will ask you that— where courts generally defer to reasonable interpretations of agencies. And what would you replace it with if you are not going to uphold it?
JUDGE KAVANAUGH. The precedent says that courts should defer to reasonable agency interpretations of ambiguous statutes, and the whole question of ambiguity has become a difficult inquiry. At least it has been in my 12 years of experience in the D.C. Circuit.
How much ambiguity is enough? And I wrote a law review article in the Harvard Law Review that problem of judges disagreeing ambiguity and how much is enough. But I also said in that article that Chevron serves good purposes in cases where it is somewhat of an overlap with the State Farm doctrine, so statutory terms like ‘‘feasible’’ or ‘‘reasonable’’ are terms of discretion that are granted to agencies and that courts should be careful not
to unduly second-guess agencies. And I have written an opinion, American Radio Relay League, where I made clear that courts should not be unduly second-guessing agencies.
RESPONSE: It would not be appropriate for me to opine on this question; as Justice Kagan explained, it is not appropriate for a judicial nominee to “grade” or give a “thumbs-up or thumbs down” to particular cases.
RESPONSE: Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis.
RESPONSE: As I explained at the hearing, the term “super-precedent” means different things to different . I have previously discussed the work of legal scholars who use “superprecedent” to refer to cases that are so well settled that no one seriously proposes overruling them. Chevron was not among the list of six cases that have been identified as superprecedents” in this scholarly context.
RESPONSE: Chevron is a precedent of the Supreme Court entitled to respect under the doctrine of stare decisis. As a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals relating to that precedent.
