State power and pre-emption doctrine

[Craig Oren]

On Fri, 4 Aug 2000, Sanford Levinson wrote:
>
> I'm reluctant to put this in terms of "good faith" or "bad faith," because
> I think that ideology works in far more complex ways.  (This is, I think, a
> problem with the more naive branch of "attitudinalist" political science
> analysis of judicial votes, which assumes that judges have clear political
> views that they simply enforce in a relatively uncomplicated way.)  I think
> I'd rather say (something like) the following:  There are always non-Rule
> 11 ideas circulating in the air, and one will tend to find them more or
> less attractive based on the consequences their adoption would lead to.
> Consider Chevron in this context.  There is much to be said for deference
> to administrative agencies.  But it's also the case that when Chevron was
> actually decided, it meant, as a practical matter, that agencies
> increasingly under the effective control of the Reagan Administration could
> give often minimalist (or at least less vigorous) interpretations than
> might have been intended by the Democratic members of Congress who had
> brought about the legislation in question.

I don't want to divert the discussion (especially because Chevron was not
a constitutional decision), but (a) it might be worth noting that Justice
Stevens (not exactly a paid-up member of the right wing) was the author of
Chevron; (b) that the concurring Justices were Chief Justice Burger and
Justices Blackmun, Brennan, Powell and White, again not exactly an
ideological uniform group (Justices Marshall, O'Connor and Rehnquist
recused themselves); and (c) that it by no means clear that the Court
intended Chevron to have a dramatic impact on the law. (The D.C. Circuit,
the circuit reversed in Chevron, seized on the decision, perhaps in part
because of changes in the Circuit's personnel). The Court has found itself
perfectly able to limit administrative agency authority when it feels it
must, as evidenced by last term's decision denying the FDA's claim to have
jurisdiction over tobacco.

In a way, this confirms what I think Sandy is saying -- that ideological
matters have less to do with the specific views of the Justices, and more
to do with the zeitgeist at the time of a decision. Judicial opinions,
like ideas, often have consequences that their progenitors never
anticipated.
------------------------------------------------------------------------------
 Professor Craig N. Oren                    telephone *856-225-6365
 Rutgers School of Law-Camden               fax  *856-225-6516
 Rutgers-The State University of New Jersey
 217 N. 5th Street
 Camden, N.J. 08102-1203                    oren at camden.rutgers.edu

*please note the new area code.
------------------------------------------------------------------------------