This morning, alas, the Supreme Court denied review of the Ninth Circuit’s February order in Baldwin v. United States. As I’ve explained before, Baldwin reflected a rare combination of worst‐practices that would have caught the eye of any Justice intent on revisiting “reflexive” judicial deference to regulatory agencies. Cato had filed a brief urging the Court to take the case.
At issue in Baldwin was the “Brand X” doctrine. Under this principle, courts defer to an agency’s reading of the law, even if the court had an existing and long‐settled interpretation. Brand X is basically a juiced‐up version of the famous Chevron doctrine.
I have three quick reactions to the Court’s decision this morning.
First, I want to draw attention to Justice Thomas’s notable dissent to the Court’s refusal to review Baldwin. Thomas had authored Brand X; today, however, he disavowed his prior work. He now believes that Brand X is “inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation.” Hear, hear!
Second, it’s equally notable that Justice Gorsuch did not join Thomas’s dissent. In a 2016 opinion, then‐judge Gorsuch made a big splash by repudiating Brand X. Thomas’s dissent raises many of the same arguments as did Gorsuch. The upshot is that it doesn’t make much sense that today’s dissent in Baldwin didn’t have at least one other cosignatory.
Third—and most important—today’s decision suggests the Court doesn’t have the appetite to take on judicial deference on statutory questions. Baldwin had been the perfect vehicle to revisit Chevron and its corollary doctrines (like Brand X). By passing on this case, the Court appears to signal that Chevron reform is on the backburner.