Judge Barrett Could Help Take a Bite Out of 'Chevron'

Judge Amy Coney Barrett, President Donald Trump’s pick to succeed the late Ruth Bader Ginsburg on the Supreme Court, could well help shift the Supreme Court’s view of how much deference to give decisions by agencies like the Federal Communications Commission. The doctrine of Chevron deference, established by the Supreme Court in the 1984 case of Chevron U.S.A., Inc. vs. Natural Resources Defense Council, established the legal test for when courts should defer to the expertise of a regulatory agency. Andrew Jay Schwartzman, a veteran watcher and participant in federal appeals, concedes there is little track record to go on, but said, looking at her general philosophy, “I would speculate that she would likely be willing to consider modifying or overruling Chevron. Similarly, she might be disposed to revisit Supreme Court jurisprudence on nondelegation.” (Barrett’s nomination could lack the necessary votes, given the COVID-19 diagnoses of some Republican senators.)