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Neutral Magistrate Should Resolve Our Legal Contests, Not One of the Contestants

Andrew Morris
Senior Litigation Counsel

November 9, 2023

“I don’t know what you mean by ‘glory,’” Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’”

“But ‘glory’ doesn’t mean ‘a nice knock-down argument,’” Alice objected.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”[1]

Alas for Alice. In the debate over “glory,” she proposed the right question, the normative one: What does the word actually mean? But Humpty Dumpty was playing for keeps and he knew his question could make hers academic: Which of them was to decide?

Humpty’s gambit is amusing in Carroll’s mad world.  It’s less so when administrative agencies use it to justify regulations Congress did not envision.  And it loses all humor whatsoever when it enters the courtroom, where its operation undermines the very foundation of our judicial system.

Almost forty years ago, a lawsuit pitted a regulatory agency (the EPA) against one of the companies it regulated (Chevron).[2]The pith of the contest was whether “source” could be understood capaciously enough to warrant the EPA’s regulatory scheme.  So Chevron, understandably, thought it was in court to debate the word’s meaning. The EPA, however, was there to win.  And so it proposed that the real question was which of those present was to be master of the term’s content:  The court . . . or the EPA (Chevron was never in the running).

It was to be expected, I suppose, that the EPA would offer itself as the decider of the contested issue. After all, I’ve never known a litigant who hasn’t wished, at some point, to dictate the meaning of the law to the court. Who wouldn’t want to be the judge of one’s own cause?  So it’s not at all surprising that the EPA would share a desire common to all litigants.  What’s surprising—and beyond that, deeply disturbing—is that the court would indulge it.

One of the most basic promises of our judicial system is that a neutral magistrate will resolve our legal contests, not one of the contestants. A “fair trial in a fair tribunal,” the Supreme Court says, “is a basic requirement of due process.”[3] Fairness, of course, “requires an absence of actual bias in the trial of cases.”[4] Which is why “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.”[5] This proposition isn’t just wise, it’s a mandate: “[A] biased decisionmaker [is] constitutionally unacceptable.”[6]

Well, it’s unacceptable unless an administrative agency is one of the parties. Then, if the contest turns on an ambiguous statute, the agency—not the court—gets to decide the law’s meaning (as long as its interpretation isn’t too edgy). That is to say, under those circumstances, the decision-maker is not only biased, its the judge of its own cause.

And that’s great . . . if you’re the agency. But what of the other party? When a court allows the agency to decide a question of law, simply because it is the government, the opposing party has good reason to wonder where its constitutionally-vouchsafed right to an impartial decision-maker went.

The regulated company is unlikely to be mollified with assurances that, in allowing its opponent to exercise some part of the judicial function, the court bears it no personal animus as it does so. The injury, as I have explained elsewhere,[7] arises not from the reason the court asserts for favoring one party over another, but from the fact that the court has a favorite at all. As an esteemed former colleague eloquently said, “[i]f the judiciary passively permits [the executive] branch to arrogate judicial power unto itself, however estimable the professed purpose for asserting this prerogative, the people inevitably suffer” because they lose “their independent arbiters of the law.”[8]

By making due process of law and the commitment to impartial decision-makers “more what you’d call ‘guidelines’ than actual rules” (as the pirate Barbossa put it in Pirates of the Caribbean), Chevron deference warps the very fabric of our constitution. It tells those who litigate against regulatory agencies that they come to court as second-class citizens, and that their causes are presumptively disfavored. This must end.

The Supreme Court has the opportunity to return this aspect of the judiciary’s function to a constitutionally orthodox foundation when it decides Relentless, Inc. v. Dept. of Commerce and Loper Bright Enterprises v. Raimondo later this term. It is time to repatriate the exclusive authority—and duty—to decide questions of law in contested cases to the third branch where it belongs.

The next time Humpty Dumpty says the law “means just what I choose it to mean—neither more nor less,” the court should thank him for his input and then decide the question independently and impartially. “[W]ithout respect to persons,” as the judicial oath of office says. And as the constitution requires.


[1] Lewis Carroll, Through the Looking Glass, chapter VI.

[2] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).

[3] In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

[4] Id.

[5] Id.

[6] Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 1464, 43 L. Ed. 2d 712 (1975).

[7] I’ve addressed some of this in the opinion I wrote in Tetra Tech EC, Inc. v. Wisconsin Dep’t of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21. My thoughts on the matter haven’t changed since then, so neither has the language I use to discuss it.

[8] Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶ 39, 376 Wis. 2d 147, 176, 897 N.W.2d 384, 398.