Loper Bright Enterprises v. Raimondo, No. 22-451 (slip op., June 28, 2024) — Dissent (Kagan, J.), chunk 36

23 Cite as: 603 U. S. ____ (2024)
KAGAN, J., dissenting
Administrative State, 83 Colum. L. Rev. 1, 29 (1983) (“Administrative application of law is administrative formulation of law whenever it involves elaboration of the statutory
norm”). How does a statutor y interpreter decide, as in
Hearst, what an “employee” is? In large part through cases
asking whether the term covers people performing specific
jobs, like (in that case) “newsboys.” 322 U. S., at 120. Or
consider one of the examples I offered above. How does an
interpreter decide when one population segment of a spe -
cies is “distinct” from another? Often by considering that
requirement with respect to particular species, like western
gray squirrels. So the distinction the majority offers makes
no real-world (or even theoretical) sense. If the Hearst
Court was deferring to an agency on whether the term “employee” covered newsboys, it was deferring to the agency on
the scope and meaning of the term “employee.”
The majority’s next rejoinder—that “the Court was far
from consistent” in deferring—falls equally flat. Ante, at
12. I am perfectly ready to acknowledge that in the pre-
APA period, a deference regime had not yet taken complete
hold. I’ll go even further: Let’s assume that deference was
then an on-again, off-again function (as the majority seems
to suggest, see ante, at 11–12, and 13, n. 3). Even on that
assumption, the majority’s main argument—that Section
706 prohibited deferential review—collapses. Once again,
the majority agrees that Section 706 was not meant to
change the then-prevailing law. See ante, at 15–16. And
even if inconsistent, that law cannot possibly be thought to
have prohibited deference. Or otherwise said: “If Section
706 did not change the law of judicial review (as we have
long recognized), then it di d not proscribe a deferential
standard then known and in use.” Kisor, 588 U. S., at 583
(plurality opinion).
The majority’s whole argument for overturning Chevron
relies on Section 706. But the text of Section 706 does not
support that result. And neither does the contemporaneous

24 LOPER BRIGHT ENTERPRISES v. RAIMONDO
KAGAN, J., dissenting
practice, which that text was supposed to reflect. So today’s
decision has no basis in the only law the majority deems
relevant. It is grounded on air.
III
And still there is worse, because abandoning Chevron
subverts every known principle of stare decisis . Of course,
respecting precedent is not an “inexorable command.”
Payne v. Tennessee, 501 U. S. 808, 828 (1991). But overthrowing it requires far more than the majority has offered
up here. Chevron is entitled to stare decisis’s strongest form
of protection. The majority thus needs an exceptionally
strong reason to overturn the decision, above and beyond
thinking it wrong. And it has nothing approaching such a
justification, proposing only a bewildering theory about
Chevron’s “unworkability.” Ante, at 32. Just five years ago,
this Court in Kisor rejected a plea to overrule Auer v. Robbins, 519 U. S. 452 (1997), which requires judicial deference
to agencies’ interpretations of their own regulations. See
588 U. S., at 586–589 (opinion of the Court). The case
against overruling Chevron is at least as strong. In particular, the majority’s decision today will cause a massive
shock to the legal system, “cast[ing] doubt on many settled
constructions” of statutes and threatening the interests of
many parties who have relied on them for years. 588 U. S.,
at 587 (opinion of the Court).
Adherence to precedent is “a foundation stone of the rule
of law.” Michigan v. Bay Mills Indian Community , 572
U. S. 782, 798 (2014). Stare decisis “promotes the evenhanded, predictable, and consistent development of legal
principles.” Payne, 501 U. S., at 827. It enables people to
order their lives in reliance on judicial decisions. And it
“contributes to the actual and perceived integrity of the judicial process,” by ensuring that those decisions are founded
in the law, and not in the “personal preferences” of judges.
Id., at 828; Dobbs, 597 U. S., at 388 (dissenting opinion).

25 Cite as: 603 U. S. ____ (2024)
KAGAN, J., dissenting
Perhaps above all else, stare decisis is a “doctrine of judicial
modesty.” Id., at 363. In that, it shares something important with Chevron. Both tell judges that they do not
know everything, and would do well to attend to the views
of others. So today, the majority rejects what judicial humility counsels not just once but twice over.
And Chevron is entitled to a particularly strong form of
stare decisis , for two separate reasons. First, it matters
that “Congress remains free to alter what we have done.”
Patterson v. McLean Credit Union , 491 U. S. 164, 173
(1989); see Kisor, 588 U. S., at 587 (opinion of the Court)
(making the same point for Auer deference). In a constitutional case, the Court alone can correct an error. But that
is not so here. “Our deference decisions are balls tossed into
Congress’s court, for acceptance or not as that branch
elects.” 588 U. S., at 587–588 (opinion of the Court). And
for generations now, Congress has chosen acceptance.
Throughout those years, Congress could have abolished
Chevron across the board, most easily by amending the
APA. Or it could have eliminated deferential review in discrete areas, by amending old laws or drafting new laws to
include an anti- Chevron provision. Instead, Congress has
“spurned multiple opportunities” to do a comprehensive rejection of Chevron, and has hardly ever done a targeted one.
Kimble v. Marvel Entertainment, LLC , 576 U. S. 446, 456
(2015); see supra, at 14–15. Or to put the point more affirmatively, Congress has kept Chevron as is for 40 years.
It maintained that position even as Members of this Court
began to call Chevron into question. See ante, at 30. From
all it appears, Congress has not agreed with the view of
some Justices that they and other judges should have more
power.
Second, Chevron is by now much more than a single decision. This Court alone, acting as Chevron allows, has upheld an agency’s reasonable interpretation of a statute at
least 70 times. See Brief for United States in No. 22–1219,