In the year following the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, a dynamic shift has been observed in the landscape of judicial review of agency interpretations. Key areas include the rise of textualism, the potential reemergence of Skidmore-style deference, and a potential carve-out for foreign policy exceptions under the major questions doctrine (MQD).
- Textualism Takes Center Stage: The court’s directive in Loper Bright departs from the decades-long deference model seen in Chevron v. Natural Resources Defense Council. By instructing courts to determine the “single best” meaning of ambiguous statutory terms, this shift toward textualism favors tools like dictionaries and ordinary meaning over agency discretion. Legal experts suggest this move will standardize statutory interpretation more rigidly, demanding scrutiny of how justifications for agency actions are framed.
- The Shadow of Skidmore: Despite Loper Bright not overtly reviving Skidmore v. Swift & Co. deference—which respects agency interpretations based on persuasiveness—the doctrine seems to linger indirectly. The term “Shadow Skidmore” has emerged as courts appear to take a cue from consistent agency interpretations as validation, without explicit citation. This nuanced invocation is notable across high-profile cases such as Kennedy v. Braidwood Management and Bondi v. VanDerStok. Lower courts remain divided on Skidmore‘s relevance—most circuits continue to cite it positively post-Loper, albeit less frequently in specific regulatory areas like environmental law.
- Embarks on MQD Exceptions: The MQD holds that Congress does not delegate major economic and political questions without clear statement. While Loper Bright did not directly address MQD, the recent ruling in FCC v. Consumers’ Research indicates possible exceptions for presidential discretion in foreign policy/national security. Justice Kavanaugh’s observations suggest the court may exempt these domains from MQD scrutiny due to inherent presidential powers, a perspective gaining traction amidst ongoing litigation, including the anticipated cases Learning Resources Inc. v. Trump and Trump v. V.O.S. Selections, Inc..
Overall, these developments reflect an evolving judicial narrative post-Chevron that’s tethered firmly to textual understanding, with the MQD’s scope still in flux. As the current term progresses, legal professionals and scholars are poised to analyze how these doctrines, or their associated shadows, are applied in forthcoming decisions. For a detailed analysis of these shifts, refer to the original article on SCOTUSblog.