Judicial Review of Administrative Agencies: Does the Type of Agency Matter?

Abstract

IN EXAMINING the topic of the Supreme Court's review of administrative agencies two broad perspectives can be identified. One perspective, the legal model, suggests that the Court is primarily concerned with an agency's adherence to procedural rules rather than the substantive policies produced by the agency. This view emphasizes the Court's search for neutral standards of review and speaks in terms of the degree of deference owed the agency, the extent to which the agency's actions comport with congressional intent, and whether an agency's findings are based on substantial evidence or could be said to be arbitrary and capricious (Davis 1977). The second perspective, most frequently associated with the schools of political jurisprudence and legal realism, emphasizes the extent to which such determinations are affected by the Court's attitude toward the agency's policy decisions. Although the concepts of procedure and policy are not always easily separated, the political jurisprudence perspective stresses the Court's concern with the policy direction of the agency, not simply whether it made its decisions in a procedurally correct manner (Shapiro 1964). Adherents of political jurisprudence have employed a variety of approaches in seeking to explain judicial behavior with respect to agencies. For instance, some political scientists have adopted a case study methodology and stressed the political context within which the Court and agency, acting as supplementary lawmakers, have sought to shape substantive policy (Shapiro 1968; Fiorino 1976; Crowley 1985). Other scholars, employing aggregate data, have investigated the overall level of Court support for administrative agencies and the degree to which variations in support for individual agencies can be attributed to disagreements on questions of policy (Pritchett 1948; Tanenhaus 1960; Canon and Giles 1972; Handberg 1979). Those who have relied on aggregate data have inevitably found that the level of Court support varies from agency to agency, but there has not been a systematic investigation of whether the level of Court support depends upon the type of regulatory agency before the Court. The failure to do so may reflect the fact that no single typology of regulatory agencies has received widespread acceptance. Nevertheless, in recent years several scholars have noted that new style social agencies differ in important ways from old style economic agencies. If noticeably different interests