So far as poetry can be regarded altogether dispassionately, so far as it is an external object for examination, it is dead poetry and not worth examining; further, so far as a critic has made himself dispassionate about it, so far as he has repressed sympathy in favor of curiosity, he has made himself incapable of examining it.
—William Empson, Seven Types of Ambiguity, 1930
About a century ago an approach to literary analysis called the New Criticism came into being. The New Criticism said the meaning of a text lay within the text itself—not in the biography of the author or the historical period during which the author wrote. The New Criticism eschewed historicism in favor of close reading.
A dilemma for the close reader was whether to resolve textual ambiguity according to the author’s intent. The New Criticism said the author’s intent didn’t matter—that genius could be unconscious or accidental. Don’t sympathize with the author; sympathize with the text. The New Criticism was already on the way out when I was an undergraduate, 40-odd years ago—it gave way to a succession of approaches, of which the dominant today is postcolonialism—but it lives on in conservative jurisprudence, which in recent years has come to downplay historicism (i.e., legislative history) in favor of close reading, which in law goes by the name “textualism.”
This indifference to authorial (i.e., congressional) intent was manifest Wednesday in oral arguments at the Supreme Court for Loper Bright Enterprises v. Raimondo, a case bankrolled by the billionaire wingnut Charles Koch that seeks to enlist judges in Donald Trump’s war against the administrative state. Listening to the arguments via livestream, this (admittedly somewhat mediocre) English major found himself thinking he liked the New Criticism a whole lot better when it confined itself to the literary canon.
“Textualism means you are governed by the text,” the doctrine’s chief proponent, the late Supreme Court Justice Antonin Scalia, explained in 2012. “Not whether the outcome is desirable, not whether legislative history says this or that.” To Scalia, the legislative process was sufficiently messy that you could read it to justify whatever interpretation you wanted. But since language can be ambiguous in a variety of ways (William Empson, addressing poetry, identified seven), and since legislators, unlike poets, must anticipate all sorts of situations in the future, statutory language can make Ezra Pound seem as straightforward as Dr. Seuss. Someone has to resolve legislative ambiguities, and within the regulatory realm, jurisprudence has for 40 years, following the Supreme Court’s 1984 ruling in Chevron v. NRDC, assigned that task primarily to regulatory agencies. The plaintiffs in Loper Bright and a companion case, Relentless, Inc. v. Department of Commerce, want to give the job to conservative judges.
You aren’t supposed to try to guess the outcome of a Supreme Court case based on justices’ questions at oral arguments, because asking a question isn’t the same as voicing an opinion. Supreme Court reporters always offer that caveat before they speculate on the outcome, so I’ll honor that tradition here. Koch and Co. would appear to have four votes in favor of overturning Chevron (in declining order of fervor): Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Samuel Alito. The four votes against overturning Chevron are (again, in declining order of fervor) Justices Elena Kagan, Sonia Sotomayor, Ketanji Brown Jackson, and Amy Coney Barrett. That leaves it up to Chief Justice John Roberts, who in expressing doubt that Chevron was “much of an actual question on the ground,” seemed a good bet to furnish the fifth vote necessary to overturn Chevron.
I don’t cover the Supreme Court very often, so I don’t know how often to expect to hear the word “ambiguity” spoken in the course of oral argument. But 50 times, which is how often it was uttered in Wednesday’s Loper Bright Enterprises argument, seems like an awful lot. There was even some ambiguity expressed about what “ambiguity” means—an observation Empson would appreciate (“I shall often use the ambiguity of ‘ambiguity’”). Kavanaugh and Alito both asked Solicitor General Elizabeth Prelogar to furnish “a concise definition” of the word “ambiguity,” after which they expressed dissatisfaction with the answer she provided. Gorsuch referred disapprovingly to an “ambiguity bucket.” Jackson observed that “some scholars” (she didn’t mean Empson) “have actually identified different kinds of ambiguity.” Sotomayor noted “disagreement” among her colleagues “around the word ‘ambiguity.’”
There was also much discussion about whether statutory ambiguity is more likely to prompt questions about policy or about law.
The justices who favor maintaining Chevron deference were on Team Policy, which would leave statutory interpretation to technical experts at regulatory agencies. Kagan performed especially well on this point, peppering the plaintiff’s counsel, Roman Martinez, with questions like, “Is a new product designed to promote healthy cholesterol levels a dietary supplement or a drug?” and “Does the term ‘power production capacity’ refer to AC power that is sent out to the electric grid or DC power that’s produced by a solar panel?” These were, Kagan noted, questions that came up in real Chevron cases. Of course, Martinez could only stammer. He strained to argue that these were matters of law, but his own legal expertise, quite obviously considerable, failed him in furnishing any kind of answer.
Kavanaugh carried the flag for Team Law, criticizing Chevron on the grounds that “it treats law as policy” and suggesting “that’s antithetical to our constitutional structure.” Here, he was summarizing Martinez’s argument, but clearly he agreed with it. “Transforming law into policy,” Kavanaugh continued, “is very difficult, I think, to accept if you accept the idea that a premise of the rule of law is that the executive and the judiciary can’t just treat the laws passed by Congress as mere expressions of policy that they can change.”
Prelogar’s strongest point was that Chevron was no departure from previous jurisprudence, but rather a continuation of it “all the way back to the founding years of the republic.” There was, she said, “a long line of cases from this court recognizing specifically that in a circumstance when you have the executive administering the statute, Congress could delegate and could expect for those delegations to be respected.”
This same point was made in a law review article by Eric Redman as far back as 1985, when Chevron was considered a conservative ruling (because it backed a pro-business regulation issued under the Environmental Protection Agency reign of Gorsuch’s mother, Ann Gorsuch Burford). Redman was involved in a companion case to Chevron, Aluminum Company of America vs. Central Lincoln People’s Utility District, which dealt with the same issue. “Neither case was at all remarkable,” Redman told me by email, given “the canons of statutory construction.”
Now this unexceptional ruling will likely be overturned, overturning along with it more than two centuries of judicial deference to the executive branch in interpreting the law as a necessary component to enforcing it. With majority support among voters in serious doubt for dismantling the administrative state, the right and the business lobby are happy to leave that work to the judiciary. Raise your hand if you think conservative judges, even operating under Chevron, will show any regard for regulations governing everything from the environment to the workplace.
