Introduction

This Article asks, in light of Loper Bright Enterprises v. Raimondo,¹45 F.4th 359 (D.C. Cir. 2022), cert. granted in part, 143 S. Ct. 2429 (argued Jan. 17, 2024) (mem.). whether interpretive regime change is afoot: Is the textualist orthodoxy championed by Justice Antonin Scalia entering a new phase? If the Court strikes down Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,²467 U.S. 837, 864–66 (1984. it will reverse a decision Justice Scalia celebrated early in his career,³See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517 (arguing that “Chevron is unquestionably better than what preceded it”); Craig Green, Chevron Debates and the Constitutional Transformation of Administrative Law, 88 Geo. Wash. L. Rev. 654, 665–69 (2020) (discussing Justice Scalia’s “enthusiasm” for Chevron). faithfully applied, and even expanded.⁴See, e.g., City of Arlington v. FCC, 569 U.S. 290, 301–305, 307 (2013) (holding that the Chevron regime applied to an agency’s determination of its own statutory jurisdiction). Chevron and textualist philosophy are quite compatible if the statute’s text runs clearly contrary to the agency interpretation.⁵See, e.g., MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 225–34 (1994) (rejecting the agency’s interpretation of the word “modify” at step one of Chevron). As Professor Jonathan Masur shares in his contribution to this Symposium, Chevron was never “for” or “against” the administrative state: deregulatory and pro-regulatory regimes gain the same amount of deference.⁶Jonathan S. Masur, Loper Bright as Entrenchment, 31 Geo. Mason L. Rev. 573, 574 (2024). Given that, one has to wonder whether Chevron skepticism signals something different, something bigger than Chevron alone. Several new developments, including Chevron skepticism, are moving us away from Justice Scalia’s emphasis on reasonable interpretation toward a world that Justice Scalia himself once described as a “degraded form of textualism,” a form of twenty-first century “strict” construction.⁷See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 3, 23 (Amy Gutmann ed., 1997).

No tear should be shed when Chevron is gone or limited. As one who writes about Congress and interpretation, it has never made any sense to me to read Congress’s notoriously ambiguous silence as a delegation of power. Large delegations of power should be read as they were written, as should narrow delegations of power. That is what an honest textualist would say. Similarly, no one should believe that changing Chevron puts the administrative state on life support. That doomsday view overclaims. If Chevron falls, regulations will continue to be issued—approving drugs, predicting hurricanes, and taming inflation.

But if Chevron is overruled or seriously limited, legal rules governing agency regulations will change abruptly. Given that Chevron is seen as a legal “goliath,”⁸Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1158 (10th Cir. 2016) (Gorsuch, J., concurring) (“All of which raises this question: what would happen in a world without Chevron? If this goliath of modern administrative law were to fall?”). one should worry that this reflects a Court with a “disruptive” instinct to use Professor Adrian Vermeule’s phrase.⁹Adrian Vermeule, Common Good Constitutionalism 113 (2022). If the Roberts Court could once be characterized as deploying legal conservatism in the Burkean sense, that is no longer true. After all, that kind of conservatism would simply follow precedent, leaving Chevron intact. If nothing else, the impending demise or narrowing of Chevron will spell a full employment bill for agency lawyers and those who challenge agency regulations.¹⁰A more serious challenge to the administrative state, by the way, is in the Court’s structural decisions reimagining agencies as part of a unitary executive.

This Article aims to understand Loper Bright’s deference skepticism as part of a larger regime change by linking three apparently unrelated interpretive developments. Part I highlights textualism’s uneasy relationship to the major questions doctrine. As Justices on both right and left have made clear, the new major questions doctrine sits uneasily with textualism. Part II considers interpretive practice more generally, based on a larger empirical study of the Court’s most recent decisions, arguing that the Court is more often narrowing statutes to what this Article calls their “core.” Part III suggests that these shifts in interpretive thought are consistent with overruling Chevron entirely or cabining it severely, even if there are more moderate approaches the Court could take. Each of these doctrines tells the same story: textualism is entering a new phase.

I.      Textualism Meets Major Questions

Textualism has never been a liberal or a conservative theory unless a judge seeks to impose that upon the text. It is an incomplete theory because it limits evidence of statutory meaning to the bare text, creating a “hermeneutical pinch,” by excluding relevant evidence of statutory meaning in hard cases.¹¹It provides less and less information to the interpreter to find Congress’s meaning, what Eskridge and I call the “hermeneutical pinch.” See William N. Eskridge, Jr. & Victoria F. Nourse, Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism, 96 N.Y.U. L. Rev. 1718, 1737 (2021) (emphasis removed). Because it is incomplete, critics have worried that judges will decide difficult cases by imposing a politically “conservative” tilt.¹²See, e.g., William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 Colum. L. Rev. 531, 549–50 (2013). Too often, Justices exude certainty about an interpretation in the face of doubt. For something to be the most “reasonable” interpretation, there must be reasons. Even if the Justices have now shifted to discussing the “best” interpretation, how does one define a “best” interpretation when language so often resists precision?¹³See Patel v. Garland, 596 U.S. 328, 346 (2022) (“As we have emphasized many times before, policy concerns cannot trump the best interpretation of the statutory text.”); Wooden v. United States, 595 U.S. 360, 377 (2022) (Kavanaugh, J., concurring) (citing Kisor v. Wilkie, 139 S. Ct. 2400, 2448 (2019) (Kavanaugh, J., concurring in judgment)) (arguing rule of lenity should and will rarely be applied if the court is focused on the best interpretation of the statute); Kisor v. Wilkie, 139 S. Ct. 2400, 2439 (2019) (Gorsuch, J., concurring in judgment) (“When we defer to an agency interpretation that differs from what we believe to be the best interpretation of the law, we compromise our judicial independence and deny the people who come before us the impartial judgment that the Constitution guarantees them.”).

Recent Supreme Court cases show that textualism is neither liberal nor conservative in theory. For example, textualism has led to apparently “liberal” results about gay rights and Native American sovereignty.¹⁴Bostock v. Clayton Cnty., 590 U.S. 644, 649 (2020) (holding that it is a violation of the text of Title VII for an employer to fire an individual for being homosexual or transgender); see McGirt v. Oklahoma, 140 S. Ct. 2452, 2478–79 (2020) (holding that Indian territory, for purposes of the Major Crimes Act, extends to nearly half of Oklahoma); see also Julian Brave NoiseCat, The McGirt Case Is a Historic Win for Tribes, Atlantic (July 12, 2020), https://perma.cc/V4U9-D6EBhttps://www.theatlantic.com/ideas/archive/2020/07/mcgirt-case-historic-win-tribes/614071/. Similarly, on the conservative side, textualism has led to no consistent set of libertarian results. Theoretical worries about textualism are not crassly political; they challenge the theory’s worth in hard cases. Textualism’s theory tells us that there are “right” answers. Recent data tell a different story: committed textualists on the Supreme Court regularly disagree.¹⁵Victoria Nourse, The Paradoxes of a Unified Judicial Philosophy: An Empirical Study of the New Supreme Court, 2020–22, 38 Const. Comment. 1, 5 (2023) (when an interpretive conflict has arisen, at least one textualist Justice defected on interpretation 67% of the time). If there is “a right answer,” as Justice Scalia once wrote,¹⁶Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 6 (2012). one would expect to see higher rates of agreement in statutory cases and fewer Supreme Court opinions lambasting fellow textualists for their “absurd” interpretations.¹⁷Nourse, supra note 15, at 49–50.

Justice Scalia’s most famous plea for a textualist approach—the ancient case of Church of the Holy Trinity v. United States¹⁸143 U.S. 457 (1892).—shows why textualism does not lead to predictable, libertarian-leaning results. Textualism does not reliably narrow statutes. In Holy Trinity, Justice Scalia argued that Justice David Brewer’s invocation of the “spirit” of the law was highly offensive, and from there, textualism was born.¹⁹Scalia, supra note 7, at 18–20. But notice what Justice Scalia’s interpretation did: it expanded the statute from an obvious core. No one doubted that the statute covered manual laborers; Justice Scalia’s textualism expanded the coverage of the statute to “brain-toilers,” a larger proportion of the working public.²⁰See id. In this sense, textualism’s origins were not conservative in the sense of narrowing the law’s application. If one were to put a thumb on the scale of narrowing the law’s reach, one would have praised Justice Brewer’s decision, which kept the statute to its core¾the manual laborer.²¹See Holy Trinity, 143 U.S. at 458–59 (holding that while the “letter” of the law covered religious pastors, the “spirit” of the law, the core of what Congress intended, was limited to alien manual laborers).

Justice Scalia rejected the deliberately narrowing interpretation associated with “strict constructionism.”²²Scalia, supra note 7, at 23. He believed that a text “should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”²³Id. Although his critics have tended to see Justice Scalia as a strict constructionist,²⁴See, e.g., Bradley C. Karkkainen, “Plain Meaning”: Justice Scalia’s Jurisprudence of Strict Statutory Construction, 17 Harv. J.L. & Pub. Pol’y 401, 425 (1994). he did not see himself that way; in fact, he called strict construction a “degraded” form of interpretation that brings the “whole philosophy into disrepute.”²⁵See Scalia, supra note 7, at 23. In short, to have adopted a “narrowing” approach in Holy Trinity, keeping the statute to its core application, was to apply strict construction, not to reasonably interpret the words.

Empirics suggest that things have changed since Justice Scalia left the Court.²⁶See Nourse, supra note 15, at 1. For one thing, the Court’s composition has changed. There is no reason for conservative Justices to compromise on method any longer in the run-of-the-mill, non-ideologically-charged case (most of what the Court does goes entirely unnoticed by the public). All of the Republican-appointed Justices have written highly textualist opinions.²⁷See id. at app. A. There is a supermajority of Justices who agree in theory about the approach. Since they can reliably win every case, textualist Justices need not compromise on method with their liberal brethren.²⁸Cf. Lawrence Baum, Membership Change and Collective Voting Change in the United States Supreme Court, 54 J. Pol. 3, 14 (1992) (finding that membership change on the Supreme Court was the primary source of voting change). Numbers alone predict that the Court could veer sharply precisely because there is no structural brake to stop the engine.

Doctrinal changes confirm that the traditional Scalia approach is changing. The easiest way to see this is to consider the major questions doctrine. That doctrine sits rather uneasily with textualism, as both liberal and conservative Justices have written. In West Virginia v. EPA,²⁹596 U.S. 697 (2022). Justice Elena Kagan accused the majority of inventing a new “major questions” doctrine: “When [textualism] would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”³⁰Id. at 779 (Kagan, J., dissenting). In last Term’s Biden v. Nebraska,³¹143 S. Ct. 2355 (2023). Justice Amy Coney Barrett, who as an academic, penned the most famous indictment of canons as inconsistent with textualism,³²Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 110 (2010). wrote that she took Justice Kagan’s statement “seriously.”³³Nebraska, 143 S. Ct. at 2376 (Barrett, J., concurring).

Justice Barrett’s concurrence in the Nebraska case deserves particular attention because it works very hard to make the major questions canon consistent with textualism, even if there are good reasons—which she acknowledges—to see it as quite inconsistent with textualism. Justice Barrett concedes that “many strong-form canons have a long historical pedigree, [but] they are ‘in significant tension with textualism’ insofar as they instruct a court to adopt something other than the statute’s most natural meaning.”³⁴Id. at 2377 (quoting Barrett, supra note 32, at 123–24). Citing Justice Scalia, she writes that

a strong-form canon “load[s] the dice for or against a particular result” in order to serve a value that the judiciary has chosen to specially protect. Even if the judiciary’s adoption of such canons can be reconciled with the Constitution, it is undeniable that they pose “a lot of trouble” for “the honest textualist.”³⁵Id. (quoting Scalia, supra note 7, at 27) (internal citations omitted); see also Barrett, supra note 32, at 124, 168–69; Nebraska, 143 S. Ct. at 2377 (Barrett, J., concurring) (quoting Scalia, supra note 7, at 28).

Quoting Dean John Manning, she punctuates this by explaining that strong canons amount to a “clarity tax” on Congress.³⁶Nebraska, 143 S. Ct. at 2376–77 (Barrett, J., concurring); see also John F. Manning, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399, 403 (2010) (describing clear statement rules generally). A strong form operates like a negative inference: if Congress has not said the magic words or something clearly importing the magic words, then the Court’s policy controls, not Congress’s text. A fairly well-known example of this kind of rule tips the scales against extraterritorial application of law: if Congress has not said, “this law applies extraterritorially,” anything more ambiguous means the law applies only domestically.³⁷See, e.g., Abitron Austria GmbH v. Hetronic Int’l, Inc., 143 S. Ct. 2522, 2527 (2023) (holding that the relevant statutory provisions did not apply extraterritorially).

Barrett candidly acknowledges that a “‘clear statement’ version of the major questions doctrine ‘loads the dice’ so that [the judicial policy] interpretation wins even if the agency’s interpretation is better.”³⁸Nebraska, 143 S. Ct. at 2378 (Barett, J., concurring). Barrett’s opinion is an extended essay on the uneasy relationship between canons and textualism. To reconcile the two, she rejects the “thumb on the scales” view of the major questions doctrine;³⁹But see id. at 2396–97 (Kagan, J., dissenting) (arguing major questions places a “thumb on the scales”). instead, she downgrades major questions to a common sense interpretive principle, as Justice Scalia had: Congress is more likely to keep “big time” policy decisions to itself, rather than “pawning them off” to an agency.⁴⁰Id. at 2380 (citing West Virginia v. EPA, 597 U.S. 697, 723 (2022)). This is a questionable understanding of congressional process, but I leave that to the footnotes. See Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev. 2193, 2207–11 (2017). In most worlds, experience deserves respect (think the military and medicine), but apparently not when it comes to experience of lawyers in Congress. Because of the increasing complexity of the world, Congress is forced to delegate given its limited institutional capacity, an entirely nonpartisan view. She urges instead the “no elephants in a mousehole” principle from which major questions sprung.⁴¹Nebraska, 143 S. Ct. at 2382 (Barrett, J., concurring) (citing Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001)). But her concession that the Court’s opinions can be read as Justice Kagan has (as a made-up “get-out-of-text-free card[ ]”) clearly supports this Article’s claim that Justice Scalia’s version of textualism may no longer be the dominant view on the Court; after all, Justice Kagan’s opinion invoking Justice Scalia was in dissent.⁴²Id. at 2376, 2382 (citing West Virginia v. EPA, 597 U.S. 697, 779 (2022) (Kagan, J., dissenting)).

Justice Barrett puts her finger on a real issue for interpretation specialists: is the Court loading the dice in favor of a conclusion, even if that is not the best reading of the statute? Despite the extraordinary rush of academics writing on the major questions doctrine, there are many things we do not know about it. Sometimes it is applied by courts of appeals, and sometimes not—no doubt an endless source of frustration to agency general counsel. Many cases that may seem quite “major” from an ordinary person’s view, may not be major from the view of the agency or Congress.⁴³See Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 480–81 (2021). If one cannot explain textualism and the major questions doctrine as consistent, then there is another explanation suggested by both Justice Barrett and Justice Kagan: today’s Court has imposed a clarity tax on Congress and agencies.⁴⁴See Nebraska, 143 S. Ct. at 2377–78 (Barrett, J., concurring); West Virginia v. EPA, 597 U.S. 697, 756 (Kagan, J., dissenting) (“Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise. . . . The majority today overrides that legislative choice.”). There have been six opinions deploying the major questions doctrine since 2019.⁴⁵See cases cited infra note 46. All six opinions concluded that the agency had overstepped its authority.⁴⁶Gundy v. United States, 139 S. Ct. 2116, 2131, 2141–42 (2019) (Gorsuch, J., dissenting); Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1925, 1931 (2020) (Thomas, J., concurring in part and dissenting in part) (arguing that the agency would violate the major questions doctrine by restructuring immigration); Nat’l Fed’n of Indep. Bus. v. OSHA, 595 U.S. 109, 117 (2022); West Virginia, 597 U.S. at 725, 735 (majority opinion); Sackett v. EPA, 143 S. Ct. 1322, 1361 (2023) (Kagan, J., concurring) (arguing the majority opinion invokes the major questions doctrine); Nebraska, 143 S. Ct. at 2375 (majority opinion). This does not include Ruan v. United States, 597 U.S. 450, 459 (2022), where Justice Stephen Breyer used the term “major question” borrowing it from Gonzales v. Oregon, 546 U.S. 243, 257–58 (2006), which was decided in 2006; the case does not apply the “major questions” doctrine as such. This also does not include Paul v. United States, 140 S. Ct. 342, 342 (2019) (Kavanaugh, J., concurring in the denial of certiorari on the nondelegation doctrine).

Justice Scalia believed strict construction violated the rule of law.⁴⁷See Scalia & Garner, supra note 16, at 39 (rejecting strict construction as a “hyperliteral brand of textualism”); see also id. at 355–58 (“Strict constructionism, as opposed to fair-reading textualism, is not a doctrine to be taken seriously.”). One can easily achieve “neutrality” in law by simply picking a side: always rule against the government, for example, would be a neutral rule. But that is exactly the problem with the strict construction Justice Scalia abjured. It is a “thumb on the scale.”⁴⁸See, e.g., Nebraska, 143 S. Ct. at 2397 (Kagan, J., dissenting) (“So the Court puts its own heavyweight thumb on the scales. It insists that ‘[h]owever broad’ Congress’s delegation to the Secretary, it (the Court) will not allow him to use that general authorization to resolve important issues. The question, the majority helpfully tells us, is ‘who has the authority’ to make such significant calls. The answer, as is now becoming commonplace, is this Court.” (internal citations omitted)). By definition, law cannot mean that one party always wins, or wins most of the time, or sixty or seventy percent of the time. Strict construction should fail the rule of law principle because it puts a thumb on the scale of interpretations against the most natural reading of the statute, remaking the statute in the image of judicially created policy preferences. So, for example, a court that sought to deliberately narrow law would reliably tend to pick the most specific language in the statute as opposed to its more general language, or sub silentio add limiting meanings to the text’s language that were not stated in the text. Although my empirical work is not done yet, current results suggest a reliable tilt narrowing statutes’ domains. This work is explained below, including its use of the notion of a statutory “core” or “domain.”

II.      Narrowing Statute’s Domains

Many years ago, the textualist icon, Judge Frank Easterbrook, introduced the concept of a statute’s “domain” in a famous law review article.⁴⁹Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 534–35 (1983). He contended, in essence, that there were some cases where statutory “construction” was impermissible because the party was seeking an interpretation outside the statute’s domain (if the statute says “dogs,” a party could not argue that it covers “cats”).⁵⁰Id. at 535–36. This Article deploys this concept for somewhat different purposes.⁵¹See Kevin Tobia, Brian G. Slocum & Victoria Nourse, Statutory Interpretation from the Outside, 122 Colum. L. Rev. 213, 280–81 (2022); Victoria F. Nourse, Two Kinds of Plain Meaning, 76 Brook. L. Rev. 997, 1000–01 (2011). It is doubtful the cat case would ever be litigated.⁵²The kind of distinction that Easterbrook wrote about was in fact embraced by treatise writers of the early eighteenth century, who believed that there were cases that did not require interpretation or construction. Nevertheless, the insight that there are “domains” for statutes is important if one is trying to assess whether courts are putting a thumb on the scale in favor of narrower or broader readings.

As Professor Henry Hart contended, many (but not all) statutes have a core¾what this Article will call a “prototypical application.”⁵³See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv.  L. Rev. 593, 607 (1958). The question that often arises in litigation is whether the Court should move beyond that prototypical application to cover more extensive applications. In his famous “no vehicles in the park” example, for instance, the prototypical application is to a car.  This Article defines “prototypical” as the application upon which most ordinary people and judges would agree; typically, both sides in litigation will agree upon a core prototypical application. Once one moves beyond that prototypical application (to something more extensive, such as bicycles or scooters), people and judges start to differ.⁵⁴See Kevin Tobia, Experimental Jurisprudence, 89 U. Chi. L. Rev. 735, 772, 784–90 (2022). This reflects the basic psychological and linguistic principle that we understand language by prototypes, not definitions.⁵⁵See, e.g., Eleanor H. Rosch, Natural Categories, 4 Cognitive Psych. 328, 348–49 (1973).

In a forthcoming empirical study, I argue that the Court today regularly construes statutes to keep to their core application. In some cases, the Court deploys statutory construction to achieve this; in others, it uses the common law to define unclear terms. But there are other ways to narrow law: by constitutional construction or limitation, which also happens on a regular basis. The easiest way to think of this in operational terms is that, when presented with two constructions, the thumb is on the scale of the narrower one. The statute will be construed more toward its core application than its peripheral ones. This Article presents some of the findings based on the cases in the 2023 Term; elsewhere I have surveyed the universe of cases in the 2020-2022 Terms⁵⁶See Nourse, supra note 15, at 1.; the full study will include all three Terms.

Sackett v. EPA⁵⁷143 S. Ct. 1322 (2023). offers an easy example.⁵⁸Id. at 1338–41. The Sacketts wanted to build a property next to a lake, but the Environmental Protection Agency halted the work upon finding that the Sacketts’ lot contained a federally protected wetland.⁵⁹Id. at 1331. In 2006, in a case called Rapanos v. United States,⁶⁰547 U.S. 715 (2006). Justice Scalia wrote for a plurality that the Clean Water Act should be limited to what amounts to flowing water, exactly what an average person would think was meant by water.⁶¹Id. at 739 (plurality opinion). In a 2023 rematch on this question, in Sackett, the majority accepted the Scalia Rapanos test.⁶²See Sackett, 143 S. Ct. at 1344. Justice Brett Kavanaugh disagreed, finding with the majority that the agency’s interpretation was wrong, but that the majority’s proposed reading had essentially “rewrit[ten]” the statute by redefining “adjacent” to mean “adjoining.”⁶³Id. at 1367 (Kavanaugh, J., concurring in the judgment). Adjoining wetlands had to flow into a body of water; Justice Kavanaugh read the statute to cover more wetlands (wetlands that did not flow into waters, but were next to water).⁶⁴Id. at 1362–63, 1368. This debate, among avowed textualists, is not anomalous; it characterizes interpretive practice on the Court, as demonstrated by how the Justices have sparred about statute’s domains in the 2020, 2021, and 2022 Terms.⁶⁵See Nourse, supra note 15, at 5–6.

It turns out that Sackett’s modus operandi—narrowing statutes’ domains in the sense defined by this Article—is not unusual in the new 2023 Term. Cases in which the Court followed the same “narrowing” pattern clearly exceeded those accepting a broader application.⁶⁶This awaits confirmation, but currently our results show approximately 60% of all cases interpreting a statutory or regulatory text are narrowing constructions. The findings will be posted as an appendix to a draft of this Article available on SSRN. Consider the following examples. In an identity theft case, the Court refused to allow the government to deploy the statute broadly, favoring what it called the more “restrained” reading, keeping the statute closer to something that most people would associate with identity theft.⁶⁷Dubin v. United States, 143 S. Ct. 1557, 1572 (2023). Similarly, the Court narrowed the ability of the federal government to deploy the mail and wire fraud statutes to attack public corruption, limiting them to their common law applications.⁶⁸Ciminelli v. United States, 143 S. Ct. 1121, 1128–29 (2023) (limiting the scope of the federal wire fraud statute); see also Turkiye Halk Bankasi A.S. v. United States, 143 S. Ct. 940, 946–51 (2023) (limiting the scope of the foreign sovereign immunity statute to exclude criminal activities of foreign entities). In another case, the Court narrowed the terrorism statute’s “aiding and abetting” language to prevent recovery against major internet providers, again focusing on the core statutory prohibition against actual help to terrorists.⁶⁹Twitter, Inc. v. Taamneh, 143 S. Ct. 1206, 1218–23 (2023).

The data so far show that narrowing constructions predominated, meaning that undisputed applications won more of the time, even if that required a bit of judicial creativity given the broad language of a statute. This occurred both through statutory construction as well as constitutional construction, reflecting both constitutional avoidance and a direct limit on unconstitutional statutory applications.⁷⁰Typically, a court does not strike down a statute as unconstitutional on its face, but as it is applied. For example, in another public corruption case, the Court narrowed the wire services fraud statute because of “due process” vagueness concerns.⁷¹See, e.g., Percoco v. United States, 143 S. Ct. 1130, 1135–39 (2023). In an immigration case, the Court narrowed the scope of a statute criminalizing the “encouragement” of illegal immigration by deploying the First Amendment.⁷²United States v. Hansen, 143 S. Ct. 1932, 1939–42 (2023). Similarly, the Court limited the reach of a state forfeiture statute because it resulted in an application that violated the Takings Clause.⁷³Tyler v. Hennepin Cnty., 143 S. Ct. 1369, 1380 (2023). In a stalking case, and in light of the First Amendment, the Court narrowed the statute’s coverage to cases in which the stalker knew of a risk that his communications were actually threatening.⁷⁴Counterman v. Colorado, 143 S. Ct. 2106, 2111–12 (2023). Similarly, the Court narrowed a Colorado public accommodations law’s application to a web developer to accord with the notion that public accommodations laws cannot control pure speech.⁷⁵303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2315 (2023).

This pattern is a sign of an emerging interpretative regime that puts a thumb on the scale favoring core applications. There could be sound normative reasons to applaud this view, depending upon one’s theory of interpretation. If consistently true, it could mean that the Court was narrowing the statute to something analogous to its core “mischief”—a term that Blackstone used to describe “the problem that prompted the statute”⁷⁶Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. 967, 1001 (2021); Timothy J. Bradley, Getting into Mischief: Reflections on Statutory Interpretation and the Mischief Rule, 109 Geo. L.J. Online 199, 221–23 (2021). Such an approach might well be more efficient and easier to apply than textualism. On the other hand, a consistently applied “mischief” rule poses serious problems for unforeseen applications, which are inevitable given a world in which facts and norms change regularly. It also raises questions about whether such a rule is properly deferential to the “public good” more generally.⁷⁷Judge Richard Posner once claimed that textualism was “autistic,” meaning that it tended to take text out of context. Richard A. Posner, How Judges Think 194 (2008). Today, no textualist claims that context is irrelevant. On the other hand, there are good arguments for why the Court narrows and expands the context in ways that are deeply untheorized. See Eskridge & Nourse, supra note 11, at 1784–85, 1788–89. However one comes down on the wisdom of a “mischief” rule, all should recognize the point about regime change: this is not textualism as Justice Scalia propounded it. After all, as we saw in the case of Holy Trinity, textualist interpretations may, in theory, expand a statute’s domains. Textualism, as originally conceived, did not put a thumb on the scale to narrow statutes.

A caveat: a consistent narrowing pattern does not necessarily support the claim, made by some, that the Court is engaged in libertarian construction.⁷⁸See e.g., Bradford C. Mank, Textualism’s Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deference to Executive Agencies, 86 Ky. L.J. 527, 565 (1997). If that were true, the cases would have a reliable tilt toward the individual when pitted against the government, but the data do not support that presumption, at least not yet. For example, if the Court were reliably libertarian, then criminal defendants would win most of the time, but that does not necessarily appear to be the case.⁷⁹See, e.g., Turkiye Halk Bankasi A.S. v. United States, 143 S. Ct. 940, 951–52 (2023). Notice that my research depends upon the domain of the statute, not the results of the case. We measure the interpretative claims of the parties themselves, the Court’s descriptions of those claims, use independent coding, and confirm these judgments by looking at legal commentary. Justice Neil Gorsuch has asserted the most consistency along libertarian lines, notably attempting to revive the rule of lenity in some criminal cases.⁸⁰See, e.g., Wooden v. United States, 595 U.S. 360, 388 (2022) (Gorsuch, J., concurring) (arguing that the “key” in this case lies in the rule of lenity). But the trend is not robustly consistent. Justices Kavanaugh and Gorsuch have sparred about the rule of lenity, and the Court has ruled against criminal defendants and immigrants in several cases in the past three years.⁸¹See, e.g., Jones v. Hendrix, 143 S. Ct. 1857, 1876–77 (2023). One might worry that the Court is more reliably libertarian for the well-heeled white-collar defendants as opposed to the average criminal defendant, but there is no consistent empirical data yet supporting that conclusion.⁸²Compare Percoco v. United States, 143 S. Ct. 1130, 1133 (2023) (honest-services wire fraud), and Ciminelli v. United States, 142 S. Ct. 1121, 1124 (2023) (federal wire fraud), with Hendrix, 143 S. Ct. at 1863–64 (denying habeas claim in a case involving unlawful possession of a firearm by a felon and making false statements to acquire a firearm). If anything, the turn toward limiting statutes toward their core is consistent with what some commentators have called “populist” interpretation.⁸³See Anya Bernstein & Glen Staszewski, Judicial Populism, 106 Minn. L. Rev. 283, 287 (2021); Eskridge & Nourse, supra note 11, at 1733.

Finally, it is important to note that this narrowing technique is inconsistent with the “original” meaning of strict construction, as measured by caselaw and treatises in the early Republic. Strict construction as a term in political discourse is as old as the Republic.⁸⁴See Peter Zavodnyik, The Age of Strict Construction: A History of the Growth of Federal Power, 1789–1861, at 1 (2007). And in that sense, it meant something we might call libertarian construction.⁸⁵See id. at 2 (quoting nineteenth century scholars supporting strict constructionism to preserve liberty). Thomas Jefferson famously said: “That government is best which governs least.”⁸⁶First cited in print in Edward Peterson, History of Rhode Island 41 (1853). Over time, various meanings of “strict construction” have arisen in the political realm, well up until the end of the twentieth century, not all of them particularly pretty since they bear the stain of racism.⁸⁷In the 1960s, President Richard Nixon famously called for “strict construction,” which he associated with law and order. See S.L. Whitesell, The Church of Originalism, 16 U. Pa. J. Const. L. 1531, 1539 (2014). He nominated two Justices to the Supreme Court whose confirmations were denied because of their associations with racial segregation. See Trevor Parry-Giles, The Character of Justice: Rhetoric, Law, and Politics in the Supreme Court Confirmation Process 88 (Martin J. Medhurst ed., 2006); Bruce H. Kalk, The Carswell Affair: The Politics of a Supreme Court Nomination in the Nixon Administration, 42 Am. J. Legal Hist. 261, 267–68 (1998). Perhaps reflecting Justice Scalia’s own worry that strict construction was a “degraded” form of construction,⁸⁸Scalia, supra note 7, at 23. the evidence shows that the Court’s current practices are inconsistent with what strict construction most consistently meant at the Founding and through the nineteenth century. Then, strict construction was limited to criminal cases,⁸⁹See United States v. Wiltberger, 18 U.S. 76, 94 (1820) (construing a criminal statute involving manslaughter on the high seas narrowly); United States v. Sheldon, 15 U.S. 119, 121 (1817) (construing a forfeiture law narrowly); United States v. Morris, 39 U.S. 464, 475 (1840) (“In expounding a penal statute the Court certainly will not extend it beyond the plain meaning of its words; for it has been long and well settled, that such statutes must be construed strictly. Yet the evident intention of the legislature ought not to be defeated by a forced and over strict construction.”). For one explanation of the rule, see The Enterprise, 8 F. Cas. 732, 734 (C.C.D.N.Y. 1810) (“But while it is said that penal statutes are to receive a strict construction, nothing more is meant than that they shall not, by what may be thought their spirit or equity, be extended to offences other than those which are specially and clearly described and provided for.”). See also Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Application of Statutory and Constitutional Law 291–92 (1857) (penal statutes to be strictly construed). something not borne out by my data to this point, and many of the examples explained above.

III.      Loper Bright’s Future

Why is Chevron skepticism a signal of interpretive regime change? Textualism sat perfectly at ease with Chevron, and Justice Scalia deployed it in key cases where the agency was held to the statute’s plain meaning.⁹⁰See, e.g., AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 397 (1999). That the Court is now poised to overrule Chevron means that something new may be going on, just as we saw when looking at major questions and statutory narrowing. How do we explain these moves? One unifying factor of all these developments—major questions, narrow construction, and Chevron skepticism—is that each moves beyond Justice Scalia’s textualism.

Justice Scalia, founder of textualism, did not see Chevron as a threat to his judicial philosophy.⁹¹See Gregory E. Maggs, Reconciling Textualism and the Chevron Doctrine: In Defense of Justice Scalia, 28 Conn. L. Rev. 393, 395 (1996). He was also an astute student of administrative law and understood that agencies served some important purposes.⁹²See Scalia, supra note 3, at 517–18. If one is resolutely hostile to agency government, however, then a thumb on the scale against Congress and agencies makes sense. No doubt the Justices believe that there are overarching structural reasons for their concerns. For example, the major questions doctrine trades on the idea that Congress, not an agency, should be the decisionmaker for particularly important problems.⁹³See West Virginia v. EPA, 597 U.S. 2587, 716 (2022) (quoting Util. Air Regul. Grp. V. EPA, 573 U.S. 302, 324 (2014)). One might justify deliberately narrowing statutes’ domains as an interpretive corollary to that proposition. But one must also worry that each of these moves—major questions, narrowing constructions, and Chevron skepticism—has predictable costs. Even if there may be good reasons impelling the move, the result is that agencies, when faced with new, unexpected, and large problems, will find it harder to act: they will have to ask themselves whether the rule or enforcement action amounts to a “major question,” and whether their interpretation of the statute is too broad, particularly if their interpretation will receive no deference.

Chevron’s rule-of-law justification lay in the theory that courts are more restrained if they defer to the agency on technical matters of statutory application. In a world of increasing complexity, there was a judicial humility about Chevron.⁹⁴See Laurence H. Silberman, Chevron—The Intersection of Law & Policy, 58 Geo. Wash. L. Rev. 821, 823 (1990). When matters involved expert judgment in statutory application (like Chevron’s own “bubble concept” for measuring polluting sources), courts deferred.⁹⁵See Scalia, supra note 3, at 511. Common sense supported that humility: Do we really want the Supreme Court predicting the path of a hurricane or assessing nuclear safety measures? In this sense, Chevron is consistent with judicial restraint and prudence about the limits of the judicial role. But that is not the view held by those seeking to overturn Chevron—who see Chevron as an attack on the judicial role itself.⁹⁶See Michigan v. EPA, 576 U.S. 743, 761 (2015) (Thomas, J., concurring). They believe that interpretation, under the Administrative Procedure Act, is left to the courts.⁹⁷5 U.S.C. § 706. And they believe that political considerations too often infect agency interpretation.⁹⁸See Michigan, 576 U.S. at 761–64 (Thomas, J., concurring) (noting the importance of a court’s independent judgment when interpreting law, unlike that of an agency’s). Why would or should, as Justice Gorsuch has asked, a judge defer to a “political actor” for a legal interpretation?⁹⁹Kisor v. Wilkie, 139 S. Ct. 2400, 2429 (2019) (Gorsuch, J., concurring in the judgment). The APA itself says the following about judicial review of agency action: “To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706.

The arguments for overruling Chevron contend that Chevron misallocates the judicial role to “say what the law is.”¹⁰⁰See Michigan, 576 U.S. at 761 (Thomas, J., concurring) (internal quotation marks omitted) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Of course, the latter is nothing but an ipse dixit; ask any Senator or President and they will each say that their branch “says” what the law is. The imprecision of “say” is breathtaking. Nevertheless, judges challenging Chevron see interpretation as their duty, one they may not “pawn[] . . . off” on agencies, to quote Justice Barrett.¹⁰¹Biden v. Nebraska, 143 S. Ct. 2355, 2380 (2023) (Barrett, J., concurring). There are good reasons to see how Chevron’s increasingly complex architecture of deference (which makes up hundreds of pages of casebooks, including mine) has led to some very odd results. Justice Gorsuch is perfectly right to ask why an immigration judge should tell the Court of Appeals for the Tenth Circuit how to interpret a statute;¹⁰²Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1150 (10th Cir. 2016) (Gorsuch, J., concurring). that should seem odd. But the question is whether one should move from that important question to the conclusion that all agencies do is “politics,” and therefore, they deserve no deference at all.

Loper Bright’s facts are a dream case for those who see the administrative state as overweening. It has the flavor of many cases, in other doctrinal areas, that the Court has taken to make a similar point: enough is enough, stop with the regulation! Consider Cedar Point Nursery, Inc. v. Hassid,¹⁰³594 U.S. 139 (2021). where the Court pushed back on unions going on private property to recruit members and found that the law amounted to an express taking.¹⁰⁴See id. at 143, 162. Loper Bright does not involve a takings claim, but there is the strong flavor of similar equities: Why should the agency force the regulated to pay for their own regulation?¹⁰⁵The answer, in this case, is the tragedy of the commons which occurs from overfishing. No regulation may mean no fish. A court might resolve Loper Bright by restraining agencies from similar practices: if the agency does not have the money to regulate, it must go to Congress. Such a resolution limited to Loper Bright’s facts may have implications for other regulatory regimes, but at the least it would be limited to a particular kind of problem and resonate with Congress’s expressed will through the appropriations process.

By contrast, reversing or seriously cabining Chevron is a much larger proposition because it will resonate across the government more broadly. It will affect the Food and Drug Administration as much as the Department of Labor, the Federal Reserve, and the entire alphabet city up and down Pennsylvania Avenue. Agency lawyers throughout the government will now have to ask themselves whether their interpretation of the statute is one the Court would approve, not simply in the past, but now with a Court focused on text and deploying rules of interpretation set toward narrow readings. One imagines many general counsel’s offices writing lots of memos on whether their prior interpretations are now subject to attack. In short, overruling Chevron could have an immediate chilling effect across agency government, on regulations small and large. At the very least, it will unleash lots of work in general counsel’s offices.

Some academics believe that the Court will not eliminate Chevron but will limit it.¹⁰⁶See, e.g., Kristin E. Hickman & Aaron L. Nielson, Narrowing Chevron’s Domain, 70 Duke L.J. 931, 999 (2021). In 2019, when the Court refused to overrule a different deference regime, Auer deference, in Kisor v. Wilkie,¹⁰⁷139 S. Ct. 2400 (2019). it cabined the rule.¹⁰⁸Id. at 2408. Before, Auer v. Robbins¹⁰⁹519 U.S. 452 (1997). required almost complete and reflexive deference to an agency’s interpretation of its own ambiguous regulation.¹¹⁰See id. at 461. Rather than overruling Auer, the Court cabined it. It insisted on true “ambiguity” (after all other tools of statutory interpretation were applied) and that the agency’s interpretation had to be based on an expertise-based “fair and considered judgment.”¹¹¹Kisor, 139 S. Ct. at 2417 (quoting Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)).

Some have suggested a similar compromise in Loper Bright, with the Court insisting on strict attention to the text but leaving a safety valve for “expertise-based” judgments.¹¹²See, e.g., Ufonobong Umanah, Expect Narrowing of Chevron Doctrine, High Court Watchers Say, Bloomberg L. (Oct. 10, 2023, 5:00 AM), https://perma.cc/FY4C-FVTS. This might be one way to satisfy those worried that agency government is riddled with partisan politics and those who still hold out hope for the concept of agency expertise. But if this Article’s propositions are correct about Chevron skepticism as part of a larger interpretive trend, then one should not hold out hope that this kind of compromise will prevail. The current Court has not shown itself particularly willing to rely upon agency expertise. The Sackett majority narrowed the statute, even though Justice Kavanaugh concurred with a different textualist reading relied upon by experts.¹¹³Sackett v. EPA, 143 S. Ct. 1322, 1362 (2023) (Kavanaugh, J., concurring in the judgment). Whatever the Loper Bright opinion does, if this Article’s propositions are correct about the larger trend to narrow law’s domain, deference will only remain for agency actions that do just that: narrow law’s domain.

Some believe the Court might cut back on Chevron but leave other deference regimes in place. There are a myriad of deference doctrines that exist apart from Chevron and are largely agency or subject matter deference regimes.¹¹⁴William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1100, 1109–11 (2008) (explaining that there are agency specific rules of deference that have existed alongside Chevron). These may well continue to exist and govern particular agencies, but those agencies may have to reconsider their special deference rules in light of an aggressive Loper Bright opinion reversing Chevron. Then, too, there is the backdrop of Skidmore v. Swift & Co.¹¹⁵323 U.S. 134 (1944). “power to persuade” deference;¹¹⁶Id. at 140. the Court is quite aware of this, however, and one can assume that they will say yay or nay on its continued viability should they make a major anti-Chevron pronouncement.

If nothing else, a new anti-deference rule will increase litigation. Regulated parties will now be incentivized to attack regulations that harm them but were created under the prior Chevron regime. Just as parties now attack statutory interpretations based on legislative history (now barred in theory if not in fact), so too will regulated parties attack prior regulations based on undue Chevron deference. If Chevron falls or even if it is just cut back, regulated parties—banks, hospitals, debt collectors—have the incentive to litigate all these matters. Of course, interest groups (whether they focus on climate change or consumer rights) are likely to resist narrow readings, and they can be repeat litigants, but they generally have fewer resources. Put in other words, this Court (with its various changes in legal practice) is a gift that is going to keep giving to lawyers.

When a serious problem with this approach emerges, it will be a problem that comes from the raw fact that statutes cannot be omniscient. The world changes and technological change is moving faster and faster. No one disputes that Congress cannot anticipate vast amounts of change. Let’s assume that Congress regulates based on core problems and that courts keep statutes to the core problem. What happens when errant actors find something new, whether it is cryptocurrency or weapons of mass destruction? If the agency must keep to the core, there is a risk that they will refuse to regulate in analogous cases, ones that may be truly harmful to the nation. Reversing Chevron is only part of the problem, as this example suggests; the Court decides very few agency cases a term, but the vast bulk of its work is statutory interpretation. A wise court would recognize the age-old wisdom that statutory interpretations should not be narrow or broad, but should analogize to unquestioned statutory applications. However much ballyhoo is made of Chevron’s impending demise or restraint, the larger job of agencies will be to reconcile their work to an increasingly new and different interpretive regime.

Conclusion

I fully expect the Court to make major changes in the Chevron doctrine.  It will assert its role to determine the “best” meaning of statutes. This, in turn, will require major changes in agency practice and will create a significant amount of litigation.