Statutory Interpretation and Chevron Deference in the Appellate Courts: An Empirical Analysis
What statutory methods does an appellate court use in reviewing decisions of an administrative agency? Further, in doing this review, are appellate judges more likely to use certain statutory methods when they expressly cite the Chevron two-step framework than if they do not? This Article explores the answers to these questions using an original database of over 200 statutory interpretation cases culled from more than 2,500 cases decided in appellate courts reviewing National Labor Relations Board (NLRB or the Board) adjudications from 1994 through 2020. In particular, the study examined the use of text, language canons, substantive canons, legislative history, precedent, policy, and practical considerations. It then compared how use of those methods varied depending on whether or not the appeals court expressly cited or applied Chevron.
Most notable was how appellate courts used precedent and policy in contrasting ways when ruling on Board statutory interpretation cases. While precedent was used more when courts reversed the Board’s pro-employee interpretation to reach an anti-employee outcome, courts referenced policy more to uphold Board rulings that were pro-employee in orientation. Both Democrat- and Republican-majority courts exhibited different tendencies in their choice of methods as well. When ruling on anti-employee interpretations, Democrat-majority courts often cited and relied on text more than Republican-majority courts. In addition, Republican-majority courts disproportionately used substantive canons to uphold anti-employee interpretations while Democrat-majority courts favored language canons when reversing such appeals.