Loper Bright Enterprises v. Raimondo, No. 22-451 (slip op., June 28, 2024) — Dissent (Kagan, J.), chunk 37

26 LOPER BRIGHT ENTERPRISES v. RAIMONDO
KAGAN, J., dissenting
p. 27; App. to id., at 68a–72a (collecting cases). Lower
courts have applied the Chevron framework on thousands
upon thousands of occasions. See K. Barnett & C. Walker,
Chevron and Stare Decisis, 31 Geo. Mason L. Rev. 475, 477,
and n. 11 (2024) (noting that at last count, Chevron was
cited in more than 18,000 federal-court decisions). The Ki -
sor Court observed, when upholding Auer, that “[d]eference
to reasonable agency interpretations of ambiguous rules
pervades the whole corpus of administrative law.” 588
U. S., at 587 (opinion of the Court). So too does deference
to reasonable agency interpretations of ambiguous statutes—except more so. Chevron is as embedded as embedded gets in the law.
The majority says differently, because this Court has ig -
nored Chevron lately; all that is left of the decision is a “decaying husk with bold pretensions.” Ante, at 33. Tell that
to the D. C. Circuit, the court that reviews a large share of
agency interpretations, where Chevron remains alive and
well. See, e.g., Lissack v. Commissioner, 68 F. 4th 1312,
1321–1322 (2023); Solar Energy Industries Assn. v. FERC,
59 F. 4th 1287, 1291–1294 (2023). But more to the point:
The majority’s argument is a bootstrap. This Court has
“avoided deferring under Chevron since 2016” (ante, at 32)
because it has been preparing to overrule Chevron since
around that time. That kind of self-help on the way to reversing precedent has become almost routine at this Court.
Stop applying a decision where one should; “throw some
gratuitous criticisms into a couple of opinions”; issue a few
separate writings “question[ing the decision’s] premises”
(ante, at 30); give the whole process a few years . . . and
voila!—you have a justification for overruling the decision.
Janus v. State, County, and Municipal Employees, 585 U. S.
878, 950 (2018) (K
AGAN, J., dissenting) (discussing the overruling of Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977));
see also, e.g., Kennedy v. Bremerton School Dist., 597 U. S.
507, 571–572 (2022) (S OTOMAYOR, J., dissenting) (similar

27 Cite as: 603 U. S. ____ (2024)
KAGAN, J., dissenting
for Lemon v. Kurtzman , 403 U. S. 602 (1971)); Shelby
County v. Holder, 570 U. S. 529, 587–588 (2013) (Ginsburg,
J., dissenting) (similar for South Carolina v. Katzenbach,
383 U. S. 301 (1966)). I once remarked that this overrulingthrough-enfeeblement technique “mock[ed] stare decisis .”
Janus, 585 U. S., at 950 (dissenting opinion). I have seen
no reason to change my mind.
The majority does no better in its main justification for
overruling Chevron—that the decision is “unworkable.”
Ante, at 30. The majority’s first theory on that score is that
there is no single “answer” about what “ambiguity” means:
Some judges turn out to see more of it than others do, leading to “different results.” Ante, at 30–31. But even if so,
the legal system has for many years, in many contexts,
dealt perfectly well with that variation. Take contract law.
It is hornbook stuff that when (but only when) a contract is
ambiguous, a court interpreting it can consult extrinsic evidence. See CNH Industrial N.V. v. Reese , 583 U. S. 133,
139 (2018) (per curiam ). And when all interpretive tools
still leave ambiguity, the contract is construed against the
drafter. See Lamps Plus, Inc. v. Varela, 587 U. S. 176, 186–
187 (2019). So I guess the contract rules of the 50 States
are unworkable now. Or look closer to home, to doctrines
this Court regularly applies. In deciding whether a government has waived sovereign immunity, we construe “[a]ny
ambiguities in the statutory language” in “favor of immunity.” FAA v. Cooper, 566 U. S. 284, 290 (2012). Similarly,
the rule of lenity tells us to construe ambiguous statutes in
favor of criminal defendants. See United States v. Castleman, 572 U. S. 157, 172–173 (2014). And the canon of
constitutional avoidance instructs us to construe ambiguous laws to avoid difficult co nstitutional questions. See
United States v. Oakland Cannabis Buyers’ Cooperative ,
532 U. S. 483, 494 (2001). I could go on, but the point is
made. There are ambiguity triggers all over the law. Somehow everyone seems to get by.

28 LOPER BRIGHT ENTERPRISES v. RAIMONDO
KAGAN, J., dissenting
And Chevron is an especially puzzling decision to criticize
on the ground of generating too much judicial divergence.
There’s good empirical—meaning, non-impressionistic—evidence on exactly that subject. And it shows that, as compared with de novo review, use of the Chevron two-step
framework fosters agreement among judges. See K. Barnett, C. Boyd, & C. Walker, Ad ministrative Law’s Political
Dynamics, 71 Vand. L. Rev. 1463, 1502 (2018) (Barnett).
More particularly, Chevron has a “powerful constraining effect on partisanship in judicial decisionmaking.” Barnett
1463 (italics deleted); see Sunstein 1672 (“[A] predictable
effect of overruling Chevron would be to ensure a far greater
role for judicial policy preferences in statutory interpreta -
tion and far more common splits along ideological lines”).
So if consistency among judges is the majority’s lodestar,
then the Court should not overrule Chevron, but return to
using it.
The majority’s second theory on workability is likewise a
makeweight. Chevron, the majority complains, has some
exceptions, which (so the majority says) are “difficult” and
“complicate[d]” to apply. Ante, at 32. Recall that courts are
not supposed to defer when the agency construing a statute
(1) has not been charged with administering that law; (2)
has not used deliberative procedures—i.e., notice-and-comment rulemaking or adjudication; or (3) is intervening in a
“major question,” of great economic and political significance. See supra, at 11–12; ante , at 27–28. As I’ve explained, those exceptions—the majority also aptly calls
them “refinements”—fit with Chevron’s rationale: They define circumstances in which Congress is unlikely to have
wanted agency views to govern. Ante, at 27; see supra, at
11–12. And on the difficulty scale, they are nothing much.
Has Congress put the agency in charge of administering the
statute? In 99 of 100 cases, everyone will agree on the answer with scarcely a moment’s thought. Did the agency use
notice-and-comment or an adjudication before rendering an