What’s This “Deference” You’re Talking About?

Anthony Sanders · March 6, 2020

Lately I’ve spent a lot of time talking about judicial “deference.” And when I’ve said things like “judges shouldn’t defer to the government in interpreting the Constitution,” a number of people have asked me what exactly does that mean? How does that “deference” work, and how does it happen?

I wanted to say just a few things here about all that, and I think a way of exploring the issue is to look at a different kind of judicial deference. The problem of judges deferring to the government comes up not just in constitutional interpretation, but in administrative law as well. In fact, a lot of people who consider themselves judicial conservatives are outspoken opponents of judges deferring to administrative agencies and the agencies’ interpretation of statutes, but extol judicial deference to the legislature when it comes to constitutional interpretation.

In fact, if you’re against deference to agencies you should also be against deference to legislatures as well.

When judges interpret a statute they generally do so according to its “plain meaning.” That’s a pretty fundamental rule you see over and over again in judicial opinions. And it makes sense. In most cases a judge does not put a thumb on the scale of justice in favor of one of the parties in a lawsuit when it comes to interpreting the statute. What is the meaning of language that the legislature passed? Well, the text of the statute itself is the best guide, whatever the plaintiff or defendant think.

In a case between two private parties—such as a contract case that turns on the interpretation of a statute—this is unremarkable. Would it make more sense if the judge should defer to the defendant’s interpretation of the statute, and only rule for the plaintiff if he provides some overwhelming evidence for the statute’s meaning? No, that would be a miscarriage of justice. The judge is supposed to interpret the statute without regard to who the parties are. That’s what the rule of law is all about. If the plain meaning of the statute results in the defendant prevailing, so be it. But it’s not because there’s a rule of interpretation that the defendant’s reading of the statute is entitled to more weight.

For some reason, however, when the government is one of the parties that logic tends to go out the window. This is true with the interpretation of statutes and of constitutions. All too often, in interpreting both kinds of written law, judges defer to what the government thinks the legally binding text means, just as if they were to arbitrarily pick the defendant’s interpretation in a private contract case.

First let’s take statutes. Although the rules are complicated, and got a bit better in some situations last year (when the Supreme Court mightily narrowed so-called Auer deference*), in many cases if an administrative agency thinks a statute or regulation has a certain meaning, the court will accept that meaning unless the private party on the other side of the lawsuit can show that that interpretation is unreasonable. (This is especially true when it comes to statutory interpretation if the agency has adopted a regulation pursuant to the statute.) Thus, if you’re not the government you don’t only have to show that your interpretation is better, i.e., closer to the statute’s plain meaning, but that the government’s is really bad.

Why? A whole host of excuses have been given over the years (leaving the law to “experts,” administrative efficiency, etc.), but at bottom the result is judges abdicating their own interpretation of the law and largely deferring that job to those who enforce it, the administrative agencies themselves. The judge will defer to the agency’s interpretation simply because it is the government.

Second, there’s the even more extreme case of constitutional interpretation. Over and over again judges and politicians alike argue that courts should only declare legislation unconstitutional if it unquestionably violates a constitutional provision. One way this is sometimes articulated is that laws should only be declared unconstitutional if they are unconstitutional ”beyond a reasonable doubt.” This is another way of saying that judges should defer to the legislature’s judgment on whether a law is constitutional (which, of course, will always be that the law is constitutional, as the legislature is presumed to not pass laws it thinks are unconstitutional). This presumption ends up with the vast majority of statutes being declared constitutional, and with courts bending over backwards to defer to the legislature’s constitutional interpretation.

What people often don’t realize is that constitutional deference to legislatures is the same thing as deference to administrative agencies. They’re two sides of the same coin.

Constitutions aren’t mere products of the legislature. With the U.S. Constitution, it was drafted by a convention and then ratified by delegates of the people. Congress has drafted amendments, but with supermajorities that were then ratified by the states. With state constitutions, they were predominately drafted by conventions and then ratified by the people. As with Congress, the legislatures sometimes propose amendments, but in almost every state the people then have to ratify them.

In other words, the people, not the legislature (they’re not the same thing!) write and ratify constitutions. As with an agency writing regulations pursuant to a statute, the legislature then writes statutes that must conform to the constitution. When someone argues to a court that the statute does not conform to the constitution, the judge is then expected to defer to someone who did not write the constitution (the legislature) on the constitution’s meaning. That’s a lot like deferring to an agency in its interpretation of a statute.

In both cases the judge is being told she should not think for herself, but instead defer to someone’s interpretation who directly stands to benefit from the ruling. (While legislatures themselves generally aren’t parties in constitutional cases, their interest in having laws declared constitutional are very present.) Both cases are antithetical to a lawsuit between private parties, where deference to one or the other would be a serious denial of due process.**

We often hear calls for an “independent judiciary.” How I interpret that is we need a judiciary who thinks for themselves, and doesn’t let one of the parties in a case do the judging for them. Yet, that’s what “deference” is.

Anthony Sanders is the Director of IJ’s Center for Judicial Engagement.

*Although it could have gone a lot further. For example, this wonderful language from Justice Gorsuch’s dissent: “Respectfully, I would stop this business of making up excuses for judges to abdicate their job of interpreting the law, and simply allow the court of appeals to afford Mr. Kisor its best independent judgment of the law’s meaning.”

* *This doesn’t mean there shouldn’t be canons of construction about the interpretation of statutes. For example, when the government tries to lock someone up the criminal defendant receives the benefit of the rule of lenity on whether his conduct is actually criminal. But that’s not because of deference to the defendant’s interpretive abilities but because of an overriding value that we shouldn’t imprison people unless we’re sure they’ve violated the law. That doesn’t apply when it comes to the legislature’s constitutional interpretation because constitutions are written to protect the people from the legislature in the first place.