The Supreme Court’s Shattered Precedents Are Coming Back to Haunt It
Slate · L · trust 33/100
The thing about the Supreme Court’s recent habit of dismantling bedrock precedents is that sometimes the carnage cuts in unexpected ways. Virtually everything about Beaird v. United States , an important criminal justice case to be argued at the start of the court’s new term, is unexpected.
The case arises out of a mundane fact pattern: Kendrick Beaird pleaded guilty to being a felon in possession of a firearm. But a dispute arose during his sentencing. Under guidelines issued by a federal agency called the United States Sentencing Commission, Beaird would face roughly an additional year in prison if his firearm had a “large capacity magazine.” Beaird’s firearm had a standard-issue, 17-round magazine. Is that enough to count as “large capacity”?
For decades, answering this question would have been straightforward: The controlling Supreme Court precedent, a case called Stinson v. United States , directed trial judges to defer to commentary issued by the relevant agency—i.e., the Sentencing Commission. And because that agency had issued commentary defining a “large capacity magazine” to mean anything with more than 15 rounds , Beaird would have been out of luck. A trial judge followed just this approach and sentenced him to a lengthier term as a result—six years in prison.
The Supreme Court will soon decide, however, if Stinson should be overruled. Beaird’s argument is that it must be, because the meaning of a “large capacity magazine” is a legal question for judges to decide, not a question on which judges should defer to an administrative agency (as Stinson held). If the court agrees, Beaird will have a shot at a more lenient sentence. But it will come at yet another considerable cost to the administrative state.
That is because the conservative majority on the Supreme Court has lately embarked on a project aimed at kneecapping federal agencies. That project culminated two years ago in Loper Bright v. Raimondo , which overruled the canonical Chevron doctrine—a rule that judges should defer to federal agencies when they reasonably interpret ambiguous statutes. Just a few years earlier, the court narrowed Chevron ’s cousin, Auer deference, which counseled similar respect to agencies when they interpret their own ambiguous regulations.
Chevron and Auer deference were grounded in the idea that independent experts at federal agencies are often better positioned than judges to offer initial answers to complicated problems.
By contrast, the conservative court’s crusade against agencies has been predicated on a different kind of image: agencies as a body of unelected, power-hungry bureaucrats who seek to concentrate executive, legislative, and judicial authority, all in order to threaten American liberty. As Justice Neil Gorsuch complained , “federal agencies don’t just write and enforce legally binding rules. Often, they act as prosecutor and judge, too.”
In arguing against deference to the Sentencing Commission’s definition of a large-capacity magazine, Beaird’s position strategically rides the coattails of the recent conservative assault on administrative agencies. As Beaird puts it , “the Court has substantially altered its judge-made deference doctrines,” eroding the logical basis for Stinson .
What is more, in making this argument, Beaird has attracted a surprising bedfellow. After pursuing the lengthier sentence against Beaird and defending it on appeal, the federal government now argues that his sentence should be vacated so that he can pursue a more lenient term. This is striking. If the Trump administration and a criminal defendant agree that the defendant should get another crack at a reduced sentence, how likely is it that they’re both wrong?
Except that they probably are. For one thing, the administration itself stops surprisingly short of calling for a categorical end to deference to the Sentencing Commission’s commentary. The administration instead defends a limited approach to agency deference that has been hotly criticized by Justices Clarence Thomas, Samuel Alito, Gorsuch, and Brett Kavanaugh—four justices with whom the administration rarely disagrees.
For another thing, those justices’ rationale for limiting agency deference—the refusal to assume that just because a law is ambiguous, Congress must have implicitly meant for agencies to get the first crack at interpretation over judges—is not at play here. As a court-appointed amicus brief persuasively argues , Congress instead expressly delegated to the Sentencing Commission the power to issue “ policy statements ” regarding sentence implementation and directed that trial judges “ shall consider ” those statements when issuing sentences.
Nor does this case involve the specter of a faceless, power-concentrating bureaucrats running roughshod over our liberties. The Sentencing Commission is a judicial agency, not an executive one, and it neither enforces nor creates law. What’s more, after a 2005 Supreme Court case , the agency’s work product is merely advisory, which means it doesn’t even bind judges.
This case thus serves as a golden opportunity for the court to draw an important line. Yes, the court overruled Chevron on the ground that it is generally the judiciary’s province to interpret the law, not agencies’. But sometimes the law Congress enacts explicitly directs the judiciary to defer to the views of federal agencies who have studied a difficult problem and made evidence-based recommendations. This is such a case.
It will, however, take a good deal of courage for some of the justices to get to this result. For at bottom, the case pits criminal defendants against an administrative agency at a time when many of the conservative justices have been inclined to vote for neither .
If that seems like a difficult conundrum, well, that’s what happens when the court goes out of its way to disturb a decades-old agency deference doctrine that Congress could have fixed if it thought it was broken . In the end, then,…
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