Kagan describes Chevron reversal as an act of 'hubris squared'

SACRAMENTO - Justice Elena Kagan, part of the three-person minority on the U.S. Supreme Court appointed by Democratic presidents, blasted her Republican-appointed colleagues at the 9th Circuit Judicial Conference on Thursday for trying to "use individual cases to advance some broader agenda or broader project to change our governing structure or our society."

An appointee of President Barack Obama, Kagan has been on the losing side of a host of major cases in recent years concerning the authority of federal administrative agencies, presidential immunity, abortion, and Second Amendment rights, many of which reversed longstanding precedent.

"If you feel as though the court majority did not play by the rules ... of the judicial enterprise, then I am frustrated and saddened by that," she told an audience of judges and attorneys in a Sacramento ballroom. "Courts should respect precedent except in unusual cases."

She also said justices are writing too many concurring opinions. As an example, Kagan cited a June decision that struck down a 1994 federal law banning possession of firearms by perpetrators of domestic violence while leaving many questions unanswered about how lower courts should apply a pivotal Second Amendment ruling in 2022. U.S. v. Rahimi, 2024 DJDAR 5442 (S. Ct., filed March 17, 2023).

While Kagan joined a concurring opinion by Justice Sonia Sotomayor in Rahimi, she said she is not a fan of concurring opinions, rarely writes them, and said lower courts "should ignore them."

"It's not a good thing for the court. It muddies the waters of our decisions," Kagan said, noting that justices were eager to chime in on the court's decision that established a "history and tradition" standard for evaluating the constitutionality of gun laws in New York Rifle & Pistol Association v. Bruen, 2022 DJDAR 6325 (S. Ct., filed Dec. 17, 2020).

Kagan, who wrote the dissent on the U.S. Supreme Court's June decision overturning Chevron deference, said there would be "a lot of uncertainty and a lot of instability" now that judges must decide how to handle a new standard giving federal courts the final word on administrative agency interpretations of existing law.

"It's just not clear how this is going to play out," said Kagan, who noted that lower courts may apply deference under a 1944 Supreme Court case which gives executive branch agencies "the power to persuade, if not the power to control." Skidmore v. Swift & Co., 323 U.S. 134 (1944).

During oral arguments in the case, Kagan had been dismissive of Skidmore, saying it "has always meant nothing." Justice John G. Roberts Jr., an appointee of President George W. Bush, ruled for the majority that the Administrative Procedure Act requires that "agency interpretations of statutes - like agency interpretations of the Constitution - are not entitled to deference." Loper Bright Enterprises v. Raimondo, 2024 DJDAR 5966 (S. Ct., filed Nov. 10, 2022).

But she was less certain Thursday that Skidmore wouldn't matter in future cases.

"Skidmore deference is often said to be ... appropriate respect given the agency's expertise and experience," she said. "For some judges, in some circumstances, Skidmore deference is going to look pretty darned close to Chevron deference. For other judges, it's not going to look so close, so there's going to be uncertainty there."

Kagan also pointed to a provision in Roberts' decision that might leave open the possibility that Congress would enact statutes "that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes."

"Where Congress really has delegated power to the agency to fill gaps, the court has to respect that," Kagan said. "This is a statutory decision, not a constitutional one. ... I think there is going to be a lot of wrangling on that question."

Still, Kagan - asked about her decision to read her dissent from the bench - denounced the decision to overturn the 40-year-old precedent - Chevron Inc. v. National Resources Defense Council, 467 U.S. 867 (1984) - as an act of "hubris squared."

"It did represent hubris to think that courts are going to be better than agencies at filling these gaps" in laws passed by Congress, she said. "Often, what is left is a policy call. ... Courts aren't supposed to make policy."

Asked about a comment by Justice Sonia Sotomayor, another Obama appointee, that she has cried about being on the losing side of major opinions, Kagan said that's not her style. "I'm more of a wall-slammer," she said.

She dismissed a question about collegiality on the court, saying the justices get along fine but it doesn't matter if they go to the opera together, as Justice Antonin Scalia and Justice Ruth Bader Ginsburg famously did. "I can't imagine why the public should care," Kagan said.

"When I'm writing an important dissent, I don't hold back," she said. "I don't think it's incumbent on me to lessen or moderate the disagreement. But I do try hard not to be ad hominem, not to be personal. I try not to use adjectives, and you can say really powerful things without using adjectives."

But Kagan praised retired Justice Anthony M. Kennedy, an appointee of President Ronald Reagan who spoke at the conference Monday, as "our civility enforcer and we miss him" - because he often suggested that an inflammatory word or sentence be removed.

Kagan defended the court's new code of conduct designed to address ethics concerns but said it is difficult and complicated to determine how to enforce the rules. "It should be judges, but it shouldn't be the Supreme Court," the justice said. "Rules usually have enforcement mechanisms attached to them and this set of rules does not."