In American Elec. Power Co. v. Connecticut, Justice Ginsburg discussed Chevron deference. One of the reasons for deference is that the Courts lack the ability to obtain the expert information agencies need to decide cases outside of a notice and comment process.

It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunc-tions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865–866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present.

This discussion may be true as a theoretical matter, and as a practical matter in lower courts, though it hardly captures how Supreme Court litigation works.

First,. while Judges cannot commission studies or convene experts for advice, by granting certiorari on a high-profile case, the Court is effectively sending out an engraved invitation to every possible expert to submit an amicus. In fact, I would not be surprised if more attention was paid by amici to the Supreme Court than to a rulemaking before a regulatory agency.

Second, the Justices routinely hear from the United States, the States, and other local governments. The Court does in fact seek the position of the United States through the CVSG (Call for the View of the Solicitor General). Often, the Court will divide the time for arguments to allow other interested parties, such as the United States or a state to present their interests–sometimes without the party’s consent, such as in McDonald v. Chicago. The Court even appoints counsel to argue a side if the parties no longer are willing to defend a judgment! And if states are to be impacted, you can be sure states will file an amicus brief. There is seldom a lack of interests represented at One First Street. The Justices ensure that. If anything, there are too many!

Third, the Court is not “confined by a record comprising the evidence the parties present.” By my count, there were about 30 amici filed that provided scores of information the Court could have relied on to decide the case. None of this information was available at the trial level. None was admitted as evidence through the laws of evidence or Daubert.

I am not doubting Chevron as a theoretical matter, and do not assert that the Justices are skilled enough to interpret the sophisticated data. However in Supreme Court litigation, where the issues are so thoroughly briefed on all conceivable sides, is this reasoning quite as valid as it is for lower courts?

Further, the extent to which the Court can take judicial notice of these statistics and studies–which were not introduced at trial through an adversarial process–as a matter of “common sense” is questionable.

Cross-Posted at ConcurringOpinions.com.