In response to:
The Battle Over Scalia’s Legacy from the December 17, 2020 issue
To the Editors:
Readers of Noah Feldman’s insightful article on the late Justice Antonin Scalia’s influence on the current Supreme Court [“The Battle Over Scalia’s Legacy,” NYR, December 17, 2020] might appreciate a factoid regarding Justice Neil Gorsuch’s opposition to the Chevron deference granting significant deference to agency interpretation of statutory authority. Chevron v. National Resources Defense Council (1984) protected a Reagan administration Environmental Protection Agency interpretation of the Clean Air Act granting polluters greater flexibility regarding compliance. The EPA administrator issuing that regulation was Anne Gorsuch, Justice Gorsuch’s mother. But for other circumstances, it could have been called the Gorsuch deference.
Besides leading us to wonder how discussions of administrative law over Thanksgiving dinner went in the Gorsuch household, this history is a reminder that, like much else Feldman identified, agency deference is not exclusively a liberal position. Deference undoubtedly looked good to conservatives in the 1980s when comparing Reagan-era policies to a then more liberal activist judiciary. One hopes that in reconsidering Chevron, the justices base their decisions on the kinds of jurisprudential considerations that Feldman describes, rather than policy preferences regarding agency regulations.
Tim Brennan
Silver Spring, Maryland
