The answer to that big question will depend on Justice Brett
Kavanaugh. During oral arguments, Kavanaugh channeled a 46-page Harvard Law
Review article
he had published in 2016, two years before President Donald Trump nominated him
to the Supreme Court. The crux of the piece, which was titled “Fixing Statutory Interpretation,” was that existing Chevron doctrine inappropriately makes judges’
decisions whether to defer turn on a murky distinction that has yielded
arbitrary and inconsistent, though hugely consequential, outcomes.
The threshold question judges face, Kavanaugh emphasized, is
whether the meaning of statutory language in question is, on the one hand,
“clear,” “plain,” or “unambiguous”—in which case judges themselves should
apply that meaning (as they understand it)—or “ambiguous,” in which event
judges should accept the agency’s view. Experience
has proven, he contended, that the difference between the two categories rests
purely in the eye of the beholder.
Instead, Kavanaugh wrote, judges should simply seek from the
outset, and later apply, their own “best reading” of the relevant terms. However, he stressed, this “suggested
approach” would require judges to “still defer to agencies in cases involving
statutes using broad and open-ended terms like ‘reasonable,’ ‘appropriate,’
‘feasible,’ or ‘practicable.’” “In those
circumstances,” then-Judge Kavanaugh wrote, “Courts should be careful not to
unduly second-guess the agency’s choice of regulation.”