January 3rd 2025 | Sajiv Mehta
Edited by Yashas Mallikarjun
President Donald J. Trump nominated Neil Gorsuch, a judge on the 10th Circuit of Appeals, to become the next Justice on the Supreme Court of the United States in 2017. During Trump’s speech regarding the appointment that would fill the opening left by Justice Antonin Scalia, he called Gorsuch “someone who will interpret [The Constitution] as written” [1]. The remark is especially interesting when compared to Justice Scalia’s judicial philosophy. Indeed, the jurist whom Gorsuch replaced made a number of contributions to originalist theory during his time on the High Court, consolidating his reputation as a leader within the branch of jurisprudence:
“In the conventional account, Justice Scalia was a ‘public meaning’ originalist who ‘identifie[d] the Constitution with the meaning of its words to a reasonable person at the time of enactment.’ As such, he would be expected to focus primarily on the Constitution’s text and historical evidence—such as dictionaries and ordinary usage—of how its words were defined and used at the relevant time” [2].
By focusing on both the text and historical evidence of the Constitution, Scalia garnered a reputation as a notable originalist and textualist. President Trump’s remarks about Justice Gorsuch as such take on a new importance; if he was introduced for the first time as a potential Justice by his aptitude with the Constitution, it is clear that Trump at least partly acknowledged his history as a textualist. Many judicial experts relatedly referred to Gorsuch as Scalia’s originalist and textualist heir apparent. However, Gorsuch’s departure from Scalia regarding the central administrative law case of Chevron, U.S.A., Inc. v. NRDC shows discrepancies in their jurisprudence, which could only have stemmed from ideological differences. Chevron’s unique importance in administrative law showed that this difference was no small or unimportant distinction. By analyzing Scalia’s comments on Chevron, one may understand that he applied structuralism in these remarks, not originalism or textualism. Indeed, structuralist arguments are a more under-analyzed aspect of Scalia’s jurisprudence [3]. Central to this argument is how we define structuralism. Sotirios A. Barber, professor of Political Science at the University of Notre Dame, and James E. Fleming, a law professor at Boston University, assert in their book, Constitutional Interpretation: The Basic Questions, that the central premise of the judicial theory deals with “the Constitution’s overall arrangement of offices, powers, and relationships” [4]. Put more simply, structuralist arguments prioritize the separation of government powers above all else.
During a guest lecture at Duke Law School in January of 1989, Justice Scalia contended that the Constitutional principle of separation of powers required “Chevron… [this interpretation] can perhaps even be derived from some of the language of Chevron itself” [5]. He attempts to distance himself from the structuralist argument and frame Chevron deference as a pragmatic tool for managing agency expertise, but his argument is ultimately a structuralist one because of its core: “Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known” [6]. Congress’s knowledge of and its dealings with governmental agencies are about intragovernmental relationships by definition. Structuralism must be a major element because it reflects a recognition that separation of powers lies not just in limiting government overreach but also in ensuring functional, predictable relationships between the branches – a fundamentally structuralist perspective. Because Scalia applied structuralism when the case called for it, his overall judicial history could never match Gorsuch’s. The ideologies simply did not match up. Gorsuch never ventured into Scalia’s pioneering structuralist territory. Indeed, when Gorsuch wrote concurring opinions in both the cases that overturned Chevron over 40 years later, he used originalism, which marked a significant departure from Scalia.
Chevron has long held undeniable significance in the sphere of administrative law, and its deep relation with separation of powers lended itself to Justice Scalia’s structuralist approach. The 1984 landmark case has been described as both a “foundational part of administrative law” and one of its most important principles [7, 8]. As the Supreme Court described in a case that overturned Chevron, “Under the Chevron doctrine, courts have sometimes been required to defer to ‘permissible’ agency interpretations of the statutes those agencies administer—even when a reviewing court reads the statute differently” [9]. The final clause in this passage represents Chevron’s true power– agencies can overrule the judicial branch in matters of statutorial interpretation – that was previously reserved for the courts. Because the High Court decided to give up a power that is tangentially related to their most prized power of constitutional review established by the Marshall Court in 1984, separation of powers is tantamount to understanding Chevron deference [10]. It logically follows, then, that Scalia would use structuralism, or a theory that reflects on the structures of government such as the separation of powers [4]. Indeed, the term “deference” itself speaks to the nature of the relationship between two branches of government: one is deferring to the other.
In both of Justice Gorsuch’s concurring opinions that overturned Chevron, however, he employs originalism, confirming his ideological shift from Justice Scalia’s opinions on the matter. Indeed, in his concurring opinion to Loper, Gorsuch discusses the historical role of the common law judge at great length to emphasize that judicial power necessarily encompasses statutory interpretation [9]. He emphasizes the historical role of judges as interpreters of pre-existing legal principles, rather than creators of new law [9]. Furthermore, Gorsuch highlights how judicial opinions were originally treated as evidence of the law’s meaning, rather than the law itself [9]. Future jurists could consequently look back at opinions with more certainty and regard them in a more critical manner [9]. This served as a boon to the legitimacy and authority of Article III because legal principles remained consistent for decades, not merely through an individual ruling [9]. This approach underscores the importance of grounding judicial analysis in long-standing legal traditions and principles over transient, aberrational interpretations [9]. Gorsuch describes the issue not as between branches of government but between government and the American people [11]. There is no issue as original to the United States as the contract between citizens and their government.
The evolution from Justice Scalia’s structuralist embrace of Chevron deference to Justice Gorsuch’s originalist rejection of it marks a significant shift in the Supreme Court’s approach to administrative law and the separation of powers. This transition underscores a deeper philosophical divide about the role of courts in statutory interpretation and their relationship to the other branches of government. Additionally, Chevron‘s significance in administrative law shows that this difference between Scalia and Gorsuch is not negligible: it has a real impact on important cases that shape a jurist’s legacy. By reaffirming the judiciary’s responsibility to interpret the law as it was understood at its inception, Justice Gorsuch has indeed contributed to a broader realignment in administrative law that prioritizes judicial independence and accountability. Looking to the future, this approach could reshape how courts engage with regulatory agencies. This would ensure that the constitutional framework of government remains firmly grounded in its historical values and simultaneously realign the United States’ governmental interactions with the American public.
Notes & Sources:
[1] “Trump Announces Neil Gorsuch as Supreme Court Nominee | ABC News.” Video. YouTube. Posted by ABC News, January 31, 2017. Accessed November 5, 2024. https://www.youtube.com/watch?v=if9YbpISP2o.
[2] Ramsey, Michael D. “Beyond the Text: Justice Scalia’s Originalism in Practice.” Notre Dame Law Review 92, no. 5 (2017): 1945-76. Accessed November 3, https://scholarship.law.nd.edu/ndlr/vol92/iss5/3/.
[3] Colby, Thomas B. “Originalism and Structural Argument.” Scholarly Commons: Northwestern Pritzker School of Law 113, no. 6 (2019): 1297-334. Accessed December 12, 2024. https://scholarlycommons.law.northwestern.edu/cgi/ viewcontent.cgi?article=1377&context=nulr.
[4] Barber, Sotirios A., and James E. Fleming. ‘Structuralism’, Constitutional Interpretation: The Basic Questions (New York, 2007; online edn, Oxford Academic, 1 Jan. 2009). Accessed 18 Dec. 2024. https://doi.org/10.1093/acprof:oso/9780195328578.003.0008,
[5] Scalia, Antonin. “Judicial Deference to Administrative Interpretations of Law.” Duke Law Journal 1989, no. 3 (1989): 511-21. Accessed November 10, 2024.
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3075&context=dlj.
[6] Ibid.
[7] Rider-Longmaid, Parker, Shay Dvoretzky, Boris Bershteyn, Emily J. Kennedy, and Steven Marcus. “Supreme Court’s Overruling of Chevron Deference to Administrative Agencies’ Interpretations of Statutes Will Invite More Challenges to Agency Decisions.” Skadden. Last modified July 9, 2024. Accessed November 3, 2024. https://www.skadden.com/insights/publications/2024/07/the-supreme-courts-overruling-of-chevron-deference.
[8] Cornell Law School. “Chevron deference.” Legal Information Institute. Accessed November 9, 2024. https://www.law.cornell.edu/wex/chevron_deference.
[9] Loper Bright Enterprises v. Raimondo, 603 U.S. _ (2024).
[10] Marbury v. Madison, 5 U.S. 137 (1803).
[11] “Loper Bright Enterprises v. Raimondo — Justice Gorsuch’s Triumphant
Concurrence.” JDSPURA. Last modified July 22, 2024. Accessed November 16, https://www.jdsupra.com/legalnews/loper-bright-enterprises-v-raimondo-4493139/.
JHULR 
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