On June 26, 2019 the Supreme Court issued its much-anticipated decision in Kisor v. Wilkie. In it, the Court preserved the Auer doctrine, which requires judges to give deference to federal agencies in interpreting their regulations. The Court’s elaborate reexamination of this doctrine — named for Auer v. Robbins, a 1997 case in which Justice Antonin Scalia endorsed it — is chock full of murky limits and caveats, and so will undoubtedly delight law professors and tax many a law student come fall exam time. The case is also worth reviewing for the tension among the various opinions, what this hints about judicial activism on the Supreme Court, and the threat all this presents to fundamental rights, including a woman’s right to choose.
The Kisor Case — Auer Deference Survives, Barely
The Kisor case arose out of a dispute over whether the Department of Veterans Affairs owes an ex-Marine disability pay covering the decades between the VA’s misdiagnosis of the veteran’s disability and its eventual recognition that he suffers from post-traumatic stress disorder traceable to his active duty in Vietnam. The decision turned on the meaning of the term “relevant” as used in a particular VA regulation. The ex-Marine argued that a straightforward reading of the regulation supported his claim for disability payments dating from his initial 1982 application. The VA’s reading allowed the agency to limit disability coverage to 2006, when Kisor petitioned the VA to reopen his case. The question before the Federal Circuit court, therefore, was which reading of the regulation to apply. When the court determined that both readings were reasonable, it went with the VA, citing Auer. Kisor appealed to the Supreme Court on the question of whether and how courts should apply Auer deference. The Court upheld the doctrine, defining it narrowly, and remanded the case back to the lower court for reconsideration in keeping with its instructions on how and when Auer applies. That court will decide whether the VA owes the ex-Marine two decades of disability pay.
Kagan vs Gorsuch — Honey Defeats Vinegar, Barely
The Auer doctrine has been much criticized, including by its author, and so it was almost a given that the Court would be divided about its survival, with the liberal four favoring the deference doctrine, the conservatives against it, and the Chief Justice — conservative at heart but increasingly intent on exorcising politics from the Court — eligible for persuading to go either way. Justice Elena Kagan, a Court centrist in her own right, took the honeyed approach, spinning out a defense of Auer laced with light humor, homespun logic, and measured humility. It worked. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer signed on without comment, while Chief Justice John Roberts joined just enough of Kagan’s opinion to make a majority. In addition, all nine Justices agreed that the case needed to return to the lower court for reconsideration. Thus there were no dissents, and Kagan’s caveat-peppered construction of Auer is now the law on judicial deference to agencies when interpreting their regulations.
Concurring opinions are often studies in minutia in which Justices who back the majority explore shaded differences between their own jurisprudential philosophy and that of their colleagues. In his Kisor opinion, Justice Neil Gorsuch demonstrates a very different approach to concurring. Gorsuch mixes insults with sanctimony in an unrestrained condemnation of both Auer and Kagan’s opinion. In his words, the Kisor majority — which included all the female Justices — “flinches” before its obvious duty to overturn Auer, and needs to “find the nerve it lacks today” when presented its next opportunity to kill the doctrine. To Gorsuch, Auer contradicts the Administrative Procedure Act and incapacitates the judiciary, thus violating the Constitution. On a granular level, according to Gorsuch, the cases preceding Auer on which Kagan relies to evoke the deep history of the doctrine do not, in fact, support it. Courts attempting to apply Auer deference, he argues, have done so inconsistently and with open confusion. To Gorsuch, apparently, there is no basis in law, logic, or tradition for the “linguistic hocus-pocus” of Kagan’s reasoning. Justices Clarence Thomas, Brett Kavanaugh, and Samuel Alito joined parts or all of the Gorsuch concurrence, indicating their shared aversion to Auer.
The Chief Justice and Justice Kavanaugh each published brief concurrences of their own, apparently seeing a need to inject a conciliatory element into the mix of opinions. The majority and its vigorous detractor were not in opposition as much as Gorsuch’s screed might suggest, both note, as Kagan’s multi-stepped test for whether and when Auer applies overlaps substantially with Gorsuch’s formula for how courts would evaluate agency regulations in a world without Auer. Still, the Chief Justice concedes in his concurrence, Auer deference is what it is: a mandate that judges be guided by agencies when interpreting their regulations. It differs from the natural respect a court would logically afford the agency viewpoint on its regulations in a world without Auer.
Is Gorsuch Gunning for Roe?
In limiting the sections of Kagan’s opinion that he was willing to join, the Chief Justice renders the Kisor decision one that rests heavily on the doctrine of stare decisis. This is the rule that judges follow Court precedents unless and until they are proven wrong or outdated. In her opinion, Kagan considers arguments favoring the overruling of Auer, such as the argument that the doctrine was seeded in cases that may not present or apply it in its current iteration, that Auer is only awkwardly reconciled with the Administrative Procedure Act, and that it constrains judges from exercising their decisional powers objectively. These arguments, the five majority Justices conclude, do not add up to a stare decisis override. Stare decisis is a core judicial commitment, and overruling precedent requires “special justification.” The Kisor case calls for a clarification and cabining in of Auer deference, but not its extinguishment.
Gorsuch responds to Kagan’s stare decisis argument in two ways. First, he mocks the idea that the Court would prefer to update Auer— leaving it, in his words, “zombified” — than to overrule it. Gorsuch considers Kagan’s exercise in gathering the threads of Auer and clarifying the doctrine an exercise in duplicity — the Court has it both ways as it bows solemnly before the rule of stare decisis even as it reshapes old doctrine so as to gut it of all that displeases the current Justices. Not only that, Gorsuch argues, but stare decisis is properly limited to the narrow substantive holdings of prior cases, and should not apply to “interpretive methodology” laid out in the Court’s old opinions. Sure, Gorsuch concedes, all of the Court’s prior statements warrant “some precedential force,” but the Court should reserve the sanctity of stare decisis for “narrow statutory decisions.” The Court, Gorsuch urges, should not bind itself to past decisions whose rationale no longer withstands “careful analysis.”
Court-watchers will remember that in her 2017 dissent in Janus v. AFSCME, Justice Kagan sharply criticized conservative members of the Court for disregarding their commitment to stare decisis. Likewise, Justice Breyer’s 2019 dissent in Franchise Tax Board of California v. Hyatt criticized the conservative majority for lacking respect for stare decisis. Breyer expressly cited Planned Parenthood v. Casey, the 1992 decision that affirmed the core of Roe v. Wade, and summed up his concerns with the much-quoted line “Today’s decision can only cause one to wonder which cases the court will overrule next.” Kisor, it seems, is Gorsuch’s effort to assure Breyer that such concerns are well-founded.
The stare decisis focus explains the Chief Justice’s motive in upholding Auer — if a Court ideologue is working to undermine fundamental rights, he does so without a majority. Similarly, Justice Alito, although no fan of Auer, declined to join Gorsuch’s stare decisis arguments. If Gorsuch’s ultimate aim is Roe, Kisor was not a well-played step in that effort.
Professor Peter Manus teaches Administrative Law, Contemporary Property Concepts, Environmental Advocacy, Environmental Justice, Environmental Law, Environmental Theory and Politics, and Property at New England Law | Boston.