Chief Justice Roberts long ago said he cared little about what academics thought. Thoughts from an Administrative Law Professor Chevron This is not unlike what the Bulgarian Professor of Evidence thinks of Immanuel Kant. Roberts certainly tells us that in Loper Bright:
[Chevron‘s] Nonetheless, flaws were evident from the outset, prompting the courts to modify its basis and continue to limit its application. It has launched and sustained a cottage industry of scholars trying to decipher its foundations and meaning.
Behind the contempt, there is truth to this statement. Over the past two days, administrative law professors experienced an existential moment: The world they had known for forty years disappeared. The “cottage industry” they built no longer exists. The expertise they developed and passed on to generations of law students is now obsolete. It’s not a pleasant feeling. For example, if the courts came out and rejected originalism—imagine after the courts packed up—what would I do? I will be drifting in the sea.
Regarding the relevance of law professors, I’m still not sure how Chief Justice Roberts actually Judge Barrett’s opinion. She seems to embody the kind of person Roberts simply didn’t want in “Article 3” – a lifelong academic with no real-world practice. Professor Scalia at least combined practice with scholarship. So does Bock. But what about Barrett? I’m sure Roberts can pull off his charm with anyone, but what does he really feel about her?
renew: In my post, I originally attributed the following quote to Chief Justice Roberts, but it was from Justice Gorsuch’s dissent:
This dissent suggests that we need not take the APA’s directives so seriously because Harvard’s “best administrative law scholars” claim to see some wiggle room in them. POST, 18 (opinion of KAGAN, J.). But nothing in the APA requires governments to respect the views of professors more than that. The dissenters’ list of Harvard’s best administrative law scholars is also incomplete. See S. Breyer et al., Administrative Law and Regulatory Policy 288 (7th ed. 2011) (acknowledging that Chevron’s deference “seems to conflict with the apparently contrary language of…706”); Kagan 212 (also acknowledging Chevron’s deference is based on “fictitious statements of legislative desire”).
Ouch.
