Justice Kavanaugh on Top Issues, Chevron and US News Rankings

Earlier this week, Notre Dame Law Review hosted its annual Federal Courts Symposium (which results in an annual issue of the Federal Courts Journal).

The main topic of the event was a question and answer session with Judge Brett Kavanaugh, moderated by Dean Marcus Cole of Notre Dame.

During the session, Judge Kavanaugh discussed a number of administrative law topics, including Chevronmajor issues doctrine and APA, as well as other topics related to legal education, including US News and World Report rankings of law schools.

It should be noted that Judge Kavanaugh was not disparaging Chevron, or suggests it should be limited, but said he is a “footnote 9 person,” since he believes courts must scrutinize the relevant statutory language, using all the traditional tools of statutory construction. A consequence of this approach, he explained, is that courts will not be in a position to consider accepting agency interpretations nearly as often, so there will be less need to cite or refer to Chevron like that. In contrast, non-Footnote 9 people, Justice Kavanaugh suggested, are more willing to defer to agencies in complex statutory schemes.

In the Major Issues Doctrine, Judge Kavanaugh referred to his own writing as a judge in the DC Circuit, and to older cases such as Benzene decision and argued that the doctrine embodies the commonsense intuition that Congress does not “hide elephants in mouse holes,” and that it has much in common with other presumptions routinely applied in statutory interpretation, such as the presumption against retroactivity.

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