The Skidmore Compromise: Interpreting Skidmore as a Tiebreaker to Preserve Judicial Wisdom in the Era of Loper Bright

By MITCHELL ZAIC. Full Text.

‘Law must be stable, and yet it cannot stand still.’ Here is the great antinomy confronting us at every turn. Rest and motion, unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue, must find some path of compromise. – Judge Cardozo

In the summer of 2024, the world of administrative law was upended when the Supreme Court overruled the Chevron decision. Chevron had long served as one of administrative law’s foundational cases and it had been the foremost vehicle by which Courts analyzed agency interpretations for decades. But suddenly, the case was gone . With its overruling, an old case has taken on new importance: Skidmore v. Swift.

Skidmore is a short administrative law case from 1944 with modest facts. The decision, which can fit on three sheets of paper, briefly and arcanely stated that deference awarded to agency interpretations will “depend upon the thoroughness evident in [their] consideration, the validity of [their] reasoning, [their] consistency with earlier and later pronouncements, and all those factors which give [them] power to persuade . . . .” Eighty years later, these words are no less clear. Yet Skidmore has become more important than at any point in history, meaning a clear interpretation is needed now more than ever.

This Note seeks to resolve the continued indeterminacy of Skidmore. It argues that the existing methods of interpreting Skidmore fall short and proposes a new path forward: the Skidmore tiebreaker. This interpretation of Skidmore would only be used by interpreters when judges are faced with interpretive ties that have no other method of resolution. Only then can judges resort to applying the agency’s interpretation. This method of interpreting Skidmore ensures that agency interpretations never overrule the best meaning of the statute, instead facilitating the judge in his or her interpretive quest. In addition, the tiebreaker continues the long tradition of respect for agency interpretations beyond that of the typical litigant.

This Note explains the intricacies of the Skidmore tie-breaker and illustrates its application through comparison to similar rules inside and outside the law. It also considers and rebuts anticipated objections that could be brought towards the use of Skidmore as a tiebreaker, mainly that interpretive ties never occur and that the tiebreaker is merely Chevron under another name. This Note conclude s by urging the adoption of the Skidmore tiebreaker as a compromise for the future of administrative law.