Does Deference Depend on Distinction? Issue Salience and Judicial Decision-Making in Administrative Law Cases

Abstract

Judicial deference to administrative agencies is often viewed as a dichotomous choice between full deference and no deference, ignoring considerations of institutional and political context. I argue that a court's decision on whether to defer to an administrative agency is more complex and is conditional on the political salience of the substantive issue in the case. I test this theory in the context of the U.S. Courts of Appeals using a sample of cases decided between 1961 and 2002. The results show that when dealing with non-salient cases, the level of deference to agencies is static, but in salient cases the level of deference is strongly related to the ideological congruence between the court and the agency.

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