“Deference” “Upheld.”

By Bill Wright

The Supreme Court’s decision today on “Auer” deference leaves life in the legal trenches untouched.  See Kisor v. Wilkie, No. 18-15 (S.Ct. June 26, 2019)  Under Kisor, when a regulatory agency issues a rule that is really, truly, ambiguous, and the agency subsequently has an appropriate occasion to think about the rule and reasonably reaches a decision on how to interpret the rule, the courts will defer to the agency interpretation.  On the other hand, when an agency issues a deliberately vague rule, and later issues an agenda-driven interpretation of the rule, the courts will agree with the agency interpretation only if the courts find the interpretation persuasive.  So, both before and after Kisor,  when an employer has to argue in court about the proper interpretation of an EEOC regulation, the employer will argue first about whether the rule is ambiguous or merely vague and will then rehearse the agency’s stated reasons for its interpretation.  If the court finds the interpretation “reasonable,” the court might “defer” to the agency.  If the court simply agrees with the interpretation, the court will issue a ruling that “agrees,” “upholds,” or “affirms” the standard.  Our court arguments will be the same either way. Only the headings in the court’s resulting opinion change.

Nevertheless, the nine-justice court generated four opinions in Kisor. The two longest opinions face off over how much the Court should stray from past precedents on this issue.  The justices sometimes called “conservative” favored considering themselves relatively unfettered by previous decisions, free to just decide what’s best.  The justices sometimes called “liberal” favored gathering the old decisions together and systematizing them in a new way, but not “overturning” them.  Only the Chief Justice and Justice Kavanaugh argued the dispute about precedents was a side show of little practical importance in this particular case.

It appears that the Supreme Court will take every opportunity this term to talk about the value of precedents in a well-governed society. At least in this case, the debate seems to have left life on the ground unchanged.