The vacancy on the U.S. Supreme Court for such an extended period harms both the judicial process and the political process, former U.S. Solicitor General Donald B. Verrilli, Jr., said in a speech at the Energy Bar Association’s Annual Meeting April 3. Verrilli also touched on the prospects for the Chevron doctrine to be overturned with a new justice on the Supreme Court.
Verrilli noted that this has been the longest vacancy on the high court since 1862, and that such a long wait in light of the failed nomination of Judge Merrick Garland, has damaged the public’s faith in the U.S. Senate. The judicial nomination process is broken, said Verrilli, and both political parties have contributed to the problem, which has resulted in growing cynicism about the Court.
However, Verrilli did note that since Justice Antonin Scalia died the Court has stayed the course, which is reflected in the cases the Court has scheduled for oral argument. When looking at the scheduling of cases, the Court appears to be avoiding cases which would most likely have a 4-4 split, said Verrilli. Also, he said that the cases that have been decided since the vacancy have been decided on narrow grounds with a high level of agreement between the justices.
Whatever the outcome of the confirmation hearing of Judge Neil Gorsuch, said Verrilli, whenever there is a new justice there is a new Court because the makeup of the Court always changes in ways that can’t be anticipated. He noted that Gorsuch is much like Scalia, because both are originalists, and that any Court with Gorsuch would probably be very conservative.
Chevron Doctrine. One of the big issues confronting the Court will be challenges to the Chevron Doctrine, and Gorsuch’s view of Chevron is different from Scalia’s, said Verrilli, particularly considering Gorsuch’s opinion in the Gutierrez-Brizuela v. Lynch case. In contrast, Scalia wrote the majority opinion applying Chevron in City of Arlington v. FCC in 2013.
The Chevron doctrine impacts the relationship of the courts and government agencies, said Verrilli, and it can be difficult to reconcile Chevron with the separation of powers. He said he was not sure that there will be a new majority on the Court willing to get rid of Chevron.
Verrilli noted there are three reasons why Chevron may not be overturned. First, it would be unusual for the Court to simply sweep away a long-held precedent, second, for decades Chevron has provided a stable framework for evaluating agency action. Third, there is a managerial aspect about whether the Court will insert itself into agency discretion without the depth of knowledge and experience an agency has in interpreting a vague statute.
Also, Verrilli noted that there are only a certain number of administrative law cases that the federal courts could handle, and doing away with Chevron could result in the courts being flooded with administrative law cases. There may be a sea change coming to administrative law, said Verrilli, but at this point it is a matter of watching and waiting to see what will happen.
FERC Case. Verrilli also talked about his familiarity with FERC and the agency’s authority, having argued in the Supreme Court on behalf of FERC in FERC v. Electric Power Supply Association. The Court ruled for FERC in that case, holding that the agency, not the states, have authority over retail electricity markets.
Verrilli is a partner with Munger, Tolles & Olson, and the founder of its Washington, D.C. office. He served as Solicitor General from June 2011 to June 2016, during which he argued dozens of cases before the U.S. Supreme Court. Before serving as Solicitor General, Verrilli served as Deputy White House Counsel, and previously as Associate Deputy Attorney General in the U.S. Department of Justice. In those positions, he counseled President Obama, Cabinet secretaries and other senior government officials on a wide range of legal issues involving national security, economic regulation, domestic policy, and the scope of executive and administrative authority.
By Denise Ryan DRyan@fosterreport.com
 In that case, the 10th Circuit, with Gorsuch writing, held that the executive branch and not the agencies should have the final say on the interpretation of a law.
This article appears as published in The Foster Report No. 3143, issued April 7, 2017
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