Kathryn A. Watts (University of Washington School of Law) has posted “From Chevron to Massachusetts: Justice Stevens’s Approach to Securing the Public Interest” on SSRN, see here. The piece is forthcoming in the UC Davis Law Review. With speculation rampant over whether Justice Stevens will retire this summer, this article seems timely given that Justice Stevens authored the opinion for the Court in both cases. In the article, Professor Watts contrasts Chevron, which advances a largely hands-off role for the judiciary over agency actions, with Massachusetts v. EPA, which permits the judiciary a more active role by permitting states to challenge administrative rules in certain circumstances. Professor Watts reconciles the inconsistent messages sent by the two opinions by showing that Justice Stevens adheres to purposivism, paying close attention to Congress’s animating principles in its legislation. He is willing to give leeway to agencies when they are working within the goals set by Congress and rein them in when they act contrary to those goals. Although the paper focuses primarily on administrative law, the article nicely summarizes Justice Stevens’s jurisprudence.
Stefanie A. Lindquist (University of Texas School of Law) and Pamela C. Corley (Vanderbilt University Department of Political Science) have posted “The Multi-Staged Process of Judicial Review: Facial and As-Applied Challenges to Legislation Before the U.S. Supreme Court” on SSRN, see here. Using an individual Justice model, this paper examines two decisions made by Justices: (1) whether to invalidate a federal statute; and (2) if so, whether to strike it down on facial or as-applied grounds. The factors influencing these decisions include the Court’s ideological distance from “the nearest chamber of Congress,” Congressional preferences regarding the statute under review, the position advanced by the Solicitor General with respect to the statute, and the level of amici support for and against the statute. Justices are less likely to invalidate a statute on facial grounds, according to the model, when a statute is preferred by a sitting Congress. The position staked out by the Solicitor General, which represents a separation of powers restraint based on executive branch preferences, also influences the likelihood that a Justice will vote to strike down a federal statute. The authors conclude that the results support a separation of powers model “at each stage of the decision making process, suggesting that the justices defer to Congressional preferences when deciding substantive constitutional issues as well as when decid[ing] the appropriate method of constitutional enforcement.”