Ending Deference?: Why Some State Supreme Courts have Chosen to Reject Deference and Others Have Not

Abstract

In my article The End of Deference: How States (and Territories and Tribes) Are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines, I conducted a survey or all 50 states to look at how state deference doctrines had developed over the past several years. I found a striking trend away from deference and towards either a wholesale or partial rejection of deference. At the end of that survey, I outlined several additional areas for research and exploration on the topic of state deference. In particular, I suggested the need for additional research into how the justifications for deference at the state and federal level differ and whether this difference in rationale has an impact on why deference is either embraced or rejected. In this article, I catalog and highlight arguments against deference at both the federal and state level. Because there is a lack of scholarly focus on state deference, I also briefly catalog and highlight some arguments made in favor of deference. Ultimately, there are a few unique arguments that are made at the state level, in particular a focus on the unique separation of powers demands of various state constitutions. But overall, what is most striking is how closely the arguments at the state level parallel and expand on those made on the federal level. The arguments in favor of deference are similar arguments that would not be out of place in federal opinions. There is accordingly still a whole range of arguments both for and against deference at the state level that have not yet been carefully examined by the judiciary.