UC Davis Law professor Vikram David Amar discusses the ongoing debate surrounding the Supreme Court’s “shadow docket” in light of recent criticism from Justice Ketanji Brown Jackson and the release of historical internal memos regarding the 2016 EPA Clean Power Plan. Professor Amar argues that while some common criticisms of the Court’s emergency-relief practices are inconsistent or misguided, the Court should enhance its legitimacy by adopting more robust procedures, such as requiring expedited briefing and providing transparent, reasoned explanations for its decisions.

NYU law professor Samuel Estreicher comments on Kisor v. Wilkie, a case currently before the US Supreme Court that raises the narrow question whether a court should accept an interpretation by the Department of Veterans Affairs of its own technical regulation but also gets at a broader question of judicial deference more generally. Estreicher argues that when agencies interpret their own regulations, courts should afford those interpretations only Skidmore respect, not the higher Chevron-style deference that has come to be commonplace.

Cornell University law professor Michael C. Dorf discusses the distinctive position taken by Supreme Court nominee Neil Gorsuch with respect to the so-called Chevron doctrine, under which courts defer to reasonable agency interpretations of ambiguous federal statutes. Dorf explains why Judge Gorsuch’s quest to end judicial deference to agencies not only contrasts with Justice Scalia’s position on the issue, but it is also erroneous and based on a misconception of how Chevron works.