Earlier this week, the Notre Dame Law Review hosted its annual Federal Courts symposium (which results in an annual federal courts issue of the journal).
The keynote of the event was a question-and-answer session with Associate Justice Brett Kavanaugh, moderated by Notre Dame Dean Marcus Cole.
During the session, Justice Kavanaugh discussed multiple administrative law topics, including Chevron, the Major Questions doctrine, and the APA, as well as other topics related to legal education, including the U.S. News & World Report law school rankings.
Of note, Justice Kavanaugh did not disparage Chevron, or suggest that it needs to be curtailed, but said that he is a “footnote 9 person,” in that he thinks courts have to carefullly scrutinize the relevant statutory language, using all of the traditional tools of statutory construction. A consequence of this approach, he explained, is that courts will not be in a position to consider deferring to agency interpretations nearly as often, so there will be less need to cite or reference Chevron as such. By contrast, non-footnote 9 people, Justice Kavanaugh suggested, are more willing to defer to agencies in the face of complex statutory schemes.
On the Major Questions Doctrine, Justice Kavanaugh referenced his own writing as a judge on the D.C. Circuit, and older cases such as the Benzene decision, and argued the doctrine embodies a common sense intuition that Congress does not “hide elephants in mouseholes,” and has much in common with other presumptions that are routinely applied in statutory interpretation, such as the presumption against retroactivity.
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