Scientific and Technical Expertise After Loper Bright

Courts once trusted federal agencies for their expertise in administering complex statutory schemes, particularly regarding science and technology. Unlike judges, agency officials can narrowly focus on a specific area of law and have access to experts to inform their decision making. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court created a presumption that, absent language to the contrary, Congress intends for agencies to interpret statutory ambiguities. Chevron allowed agencies to utilize their varied forms of expertise while ensuring oversight from generalist judges.

This court–agency partnership abruptly ended, however, in Loper Bright Enterprises v. Raimondo. The Court distinguished between legal and scientific expertise, noting that the former receives no deference while the latter has merely the power to persuade. Although the Court ultimately ruled on statutory grounds, it invoked Article III to support the argument that judges have an affirmative obligation to independently interpret statutes. But by shifting primary interpretive authority from agencies to reviewing courts, the Court has forced generalist judges to grapple with complex scientific and technical concepts that they are ill-equipped to understand.

Loper Bright could result in a heavier workload for judges—or worse, could cause them to fall back on partisan preferences. Congress is not wholly without power, however. Beyond expressly delegating interpretive authority to agencies where constitutionally permissible, Congress could give appellate courts access to neutral experts with relevant backgrounds. By enabling appellate courts to hire and use neutral experts in administrative law cases, Congress would reduce judges’ workload, improve the quality of judicial decision making, and ensure that judges independently interpret statutes.