Loper Bright Enterprises v. Raimondo, No. 22-451 (slip op., June 28, 2024) — Concurrence (Gorsuch, J.), chunk 22

14 LOPER BRIGHT ENTERPRISES v. RAIMONDO
GORSUCH, J., concurring
Much more could be said about Chevron ’s inconsistency
with the APA. But I have said it in the past. See Buffington
v. McDonough, 598 U. S. ___, ___–___ (2022) (opinion dissenting from denial of certiorari) (slip op., at 5–6);
Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142, 1151–1153
(CA10 2016) (concurring opinion). And the Court makes
many of the same points at length today. See ante, at 18–
22. For present purposes, the short of it is that continuing
to abide Chevron deference would require us to transgress
the first lesson of stare decisis—the humility required of
judges to recognize that our decisions must yield to the laws
adopted by the people’s elected representatives.
3
B
Lesson 2 cannot rescue Chevron deference. If stare decisis calls for judicial humility in the face of the written law,
it also cautions us to test our present conclusions carefully
against the work of our predecessors. At the same time and
as we have seen, this second form of humility counsels us to
remember that precedents that have won the endorsement
of judges across many generations, demonstrated coherence
with our broader law, and weathered the tests of time and
experience are entitled to greater consideration than those
that have not. See Part I, supra. Viewed by each of these
lights, the case for Chevron deference only grows weaker
still.
——————
3 The dissent suggests that we need not take the APA’s directions quite
so seriously because the “finest administrative law scholars” from Har -
vard claim to see in them some wiggle room. Post , at 18 (opinion of
KAGAN, J.). But nothing in the APA commands deference to the views of
professors any more than it does th e government. Nor is the dissent’s
list of Harvard’s finest administrative law scholars entirely complete.
See S. Breyer et al., Administrative Law and Regulatory Policy 288 (7th
ed. 2011) (acknowledging that Chevron deference “seems in conflict with
. . . the apparently contrary language of 706”); Kagan 212 (likewise ac -
knowledging Chevron deference rests upon a “f ictionalized statement of
legislative desire”).

15 Cite as: 603 U. S. ____ (2024)
GORSUCH, J., concurring
1
Start with a look to how our predecessors traditionally
understood the judicial role in disputes over a law’s meaning. From the Nation’s founding, they considered “[t]he interpretation of the laws” in cases and controversies “the
proper and peculiar province of the courts.” The Federalist
No. 78, p. 467 (C. Rossiter ed. 1961) (A. Hamilton). Perhaps
the Court’s most famous early decision reflected exactly
that view. There, Chief Justice Marshall declared it “emphatically the province and duty of the judicial department
to say what the law is.” Marbury, 1 Cranch, at 177. For
judges “have neither FORCE nor WILL but merely judgment”—and an obligation to exe rcise that judgment independently. The Federalist No. 78, at 465. No matter how
“disagreeable that duty may be,” this Court has said, a
judge “is not at liberty to surrender, or to waive it.” United
States v. Dickson, 15 Pet. 141, 162 (1841) (Story, J.). This
duty of independent judgment is perhaps “the defining
characteristi[c] of Article III judges.” Stern v. Marshall, 564
U. S. 462, 483 (2011).
To be sure, this Court has also long extended “great respect” to the “contemporaneous” and consistent views of the
coordinate branches about the meaning of a statute’s terms.
Edwards’ Lessee v. Darby, 12 Wheat. 206, 210 (1827); see
also McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); Stuart v. Laird, 1 Cranch 299, 309 (1803).
4 But traditionally,
that did not mean a court had to “defer” to any “reasonable”
——————
4 Accord, National Lead Co. v. United States, 252 U. S. 140, 145–146
(1920) (affording “great weight” to a “contemporaneous construction” by
the executive that had “been long continued”); Jacobs v. Prichard, 223
U. S. 200, 214 (1912) (“find[ing] no ambiguity in the act” but also finding
“strength” for the Court’s interpreta tion in the executive’s “immediate
and continued construction of the act”); Schell’s Executors v. Fauché, 138
U. S. 562, 572 (1891) (treating as “controlling” a “contemporaneous construction” of a law endorsed “not only [by] the courts but [also by] the
departments”).

16 LOPER BRIGHT ENTERPRISES v. RAIMONDO
GORSUCH, J., concurring
construction of an “ambiguous” law that an executive
agency might offer. It did not mean that the government
could propound a “reasonable” view of the law’s meaning
one day, a different one the next, and bind the judiciary always to its latest word. Nor did it mean the executive could
displace a pre-existing judicial construction of a statute’s
terms, replace it with its own, and effectively overrule a judicial precedent in the process. Put simply, this Court was
“not bound” by any and all reasonable “administrative construction[s]” of ambiguous statutes when resolving cases
and controversies. Burnet v. Chicago Portrait Co., 285 U. S.
1, 16 (1932). While the executive’s consistent and contemporaneous views warranted respect, they “by no means control[led] the action or the opinion of this court in expounding the law with reference to the rights of parties litigant
before them.” Irvine v. Marshall, 20 How. 558, 567 (1858);
see also A. Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L. J. 908, 987 (2017).
Sensing how jarringly inconsistent Chevron is with this
Court’s many longstanding precedents discussing the nature of the judicial role in disputes over the law’s meaning,
the government and dissent struggle for a response. The
best they can muster is a handful of cases from the early
1940s in which, they say, this Court first “put [deference]
principles into action.” Post, at 21 (K
AGAN, J., dissenting).
And, admittedly, for a period this Court toyed with a form
of deference akin to Chevron, at least for so-called mixed
questions of law and fact. See, e.g., Gray v. Powell, 314
U. S. 402, 411–412 (1941); NLRB v. Hearst Publications,
Inc., 322 U. S. 111, 131 (1944). But, as the Court details,
even that limited experiment did not last. See ante, at 10–
12. Justice Roberts, in his Gray dissent, decried these decisions for “abdicat[ing our] function as a court of review”
and “complete[ly] revers[ing] . . . the normal and usual
method of construing a statute.” 314 U. S., at 420–421.
And just a few years later, in Skidmore v. Swift & Co., 323