The clock had just struck 1:15 p.m. on Wednesday when the justices, who had been in the courtroom since 10 a.m., finally appeared at a loss of what else to ask U.S. Solicitor General Elizabeth Prelogar about “Chevron deference.”

After more than three hours of rapid-fire questioning, over the course of two separate hearings, it seemed like all that could be said had been said about whether to overturn the “foundational” doctrine of administrative law, as Prelogar had called it. 

The silence, however, didn’t last long. Prelogar briefly scanned the faces of the justices for follow-up questions before launching back into her defense of Chevron, sparking another round of debate in the cavernous room. It would be nearly 2 p.m. by the time the justices shuffled down from the bench for their regular post-argument lunch together. 

The length of Wednesday’s arguments at the court were a testament to the weightiness of the legal question before it: When the law is unclear, should courts defer to federal agencies’ reasonable interpretations? That relatively simple proposition, established in the Supreme Court’s 1984 decision in Chevron USA Inc. v. NRDC, has been cited in thousands of legal decisions over the last four decades and served as the bedrock of modern administrative law. The justices are now considering overruling Chevron entirely.

Welcome to Supreme Court Brief. Below, I break down five notable moments during Wednesday’s hearings on the fate of Chevron deference in the cases Relentless Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo.

Thanks for reading Supreme Court Brief. If you’d like to get in touch, you can reach me at jihoover@alm.cohm. Follow me on X: @JimmyHooverDC

The  U.S. Supreme Court courtroom in Washington. Credit: Carol M. Highsmith/Library of Congress via Wikimedia

Kagan Brings Up AI In Defense Of Chevron

As Latham & Watkins’ Roman Martinez urged the Supreme Court to overturn Chevron on Wednesday, Justice Elena Kagan used the emerging issue of artificial intelligence as an example of where Congress might leave “gaps” in a hypothetical statute that fails to account for every last scenario that comes up.

“Congress knows that there are going to be gaps because Congress can hardly see a week in the future with respect to this subject, let alone a year or a decade in the future," Kagan said. "And Congress knows that there are going to be things that it writes that it's just not going to be clear how this will apply or what it will mean with respect to countless factual situations that this country will have to address. Does the Congress want this Court to decide those questions, policy-laden questions, of artificial intelligence?”

Gorsuch: Haven’t We Tried Correcting Chevron Already?

Justices Neil Gorsuch and Brett Kavanaugh were the most vocal critics of the Chevron doctrine Wednesday.

For Gorsuch’s part, that’s hardly a surprise. He has called the doctrine into question since his days on the U.S. Court of Appeals for the Tenth Circuit, when he argued that it is the job of courts to interpret the law, rather than defer to agencies.

One of the problems with Chevron, Gorsuch argued, is that judges don’t know when to consider a statute ambiguous such that deference is owed to an agency. Gorsuch seemed to grow frustrated with U.S. Solicitor General Elizabeth Prelogar's arguments that the court could “issue a course correction” to make sure lower court judges apply the ordinary tools of statutory interpretation before finding a law ambiguous.