On Monday, the Supreme Court docket denied certiorari in Buffington v. McDonough. This case, introduced by the New Civil Liberties Alliance, expressly requested the Court docket to overrule Chevron. Justice Gorsuch dissented from the denial of certiorari. He wrote a sixteen-page opinion that excoriated Chevron. Right here is the conclusion:
No measure of silence (on this Court docket’s half) and no variety of separate writings(on my half and so many others) will defend them. At this late hour, the entire challenge deserves a tombstone nobody can miss. We should always acknowledge forthrightly that Chevron didn’t undo, and couldn’t have undone, the judicial responsibility to offer an unbiased judgment of the legislation’s which means within the instances that come earlier than the Nation’s courts. Sometime quickly I hope we would.
However nobody joined Justice Gorsuch. And it wasn’t for a scarcity of attempting.
The briefing concluded on April 26, 2022. The petition was initially scheduled for the Might 12, 2022 convention. But it surely was rescheduled earlier than that convention, in addition to conferences on Might 19, Might 26, June 2, June 9, June 16, and June 23. My guess is that Gorsuch was attempting to cobble collectively votes for a grant. These have been “reschedules” somewhat than “relists.” The previous suggests there may be motion afoot; the latter counsel a dissent is being ready. Now throughout this era, the Court docket was in any other case occupied with Dobbs and Bruen, so consideration could have been divided.
Alas, the summer time didn’t show fruitful. The petition was not acted upon on the September 28 convention, and was relisted. The petition was then relisted once more after the conferences on October 7, October 14, and October 28. I surmise throughout this relist watch, Justice Gorsuch was sharpening his dissent. The petition was lastly put out of its distress on the November 7 order record, accompanied by Justice Gorsuch’s dissental.
It appears there is no such thing as a curiosity at this level in overruling Chevron. Kisor was most likely the closest the Court docket will get. If the Court docket could not even muster 5 votes to nix Auer deference, then Chevron might be a bridge too far. In any occasion, the Court docket has already overruled its fair proportion of Burger-Court docket precedents: Roe, Lemon, Abood, and (quickly sufficient) Bakke. Typically, the present Roberts Court docket known as the anti-Warren Court docket, however I believe it will be extra correct to name it the Anti-Burger Court docket. The Court docket leaves in place the foundational abuses of the judicial position by the Warren Court docket, equivalent to Griswold, Engel v. Vitale, and Miranda, however as an alternative nibbles across the fringe of the follow-up selections from the Burger period.