Loper Bright changed who interprets a statute, and what we call the agency’s part in it — deliberately, and consequentially. It left untouched the one thing it seemed designed to move: the act of reading an ambiguous law against the experience of administering it.
In Loper Bright Enterprises v. Raimondo, the Supreme Court cited Skidmore v. Swift & Co. — the old, pre-Chevron standard under which courts gave agency views as much weight as their reasoning earned, and no more — approvingly, nine times, across the majority opinion and Justice Gorsuch’s concurrence. It read like a signal that the doctrine the Court was reaching back toward would outlast the one it was burying. Then, across the entire first year after Loper Bright, the Court did not write the word Skidmore once.
The Court’s silence should puzzle you because the artifact preserved by Skidmore did not fall silent with it. In a run of decisions last term — Justice Kavanaugh’s majority in Kennedy v. Braidwood Management, Justice Kagan’s in FCC v. Consumers’ Research, Justice Gorsuch’s in Bondi v. VanDerStok — the Supreme Court appeared to navigate life post-Chevron cognizably. Each opinion made the same argumentative move. In Braidwood, FCC, and VanDerStok, the Court interpreted the relevant statute separately, then observed that the responsible agency had long read the text the same way. Thus, the Justices treated that consistency as evidence the reading was right. In Braidwood, Justice Kavanaugh wrote that the agency’s long practice “buttresses” the ordinary meaning. None of the opinions cited Skidmore. The respect for Skidmore’s specter loomed over the Court, but no one ever invoked its name.
What to call this…Doctrine of Nominal Avoidance…has become its own small fight. YLS Prof. Abbe Gluck, who first flagged the pattern, reads it as a kind of deference in hiding. Gluck argues that courts are perhaps “paving, through the backdoor, a path back to something like Chevron,” or using agency consistency as a legitimating tool, the way the Burger Court once tacked legislative history onto its early textualist opinions to reassure itself it had gotten the answer right. Ryan Mulvey, writing for the Americans for Prosperity Foundation — a free-market advocacy organization with an institutional interest in seeing no deference revived, which a reader should weigh as one would weigh my own priors — reads the identical cases the opposite way. (To be sure, Professor Gluck’s prior scholarship is well worth reading for any legally interested mind.)
To Mulvey, there is no shadow deference because there is no deference at all: the Court is reviving two interpretive canons older than the administrative state, contemporanea expositio and interpres consuetudo, under which a longstanding, contemporaneous reading of a text is simply evidence of what the text always meant. Agency practice earns no respect for its own sake: Textual exegesis finds proof in practice. Authorization of agency action alone earns no quarter here.
Both Gluck and Mulvey are seeing something real about Skidmore’s continuing influence, or lack thereof. Respectfully, both miss that the real thing both see is one thing seen twice. The dispute over the label obscures the continuity beneath it. What Loper Bright changed was the locus of interpretation — who performs it with binding effect, the agency or the court — and the verbiage — what we call the agency’s contribution, whether “deference,” “respect,” “buttressing,” or a Latin canon. Those changes are neither small nor arbitrary. They reallocate decisional authority from the executive branch to the judiciary, and that reallocation was the deliberate, reasoned point of the decision, not an incident of sloppy drafting. But they operate on the allocation of the interpretive act and on its vocabulary. They do not touch the act itself: a human interpreter reading an ambiguous statute against the accumulated experience of those who have lived inside it. That operation is the constant. The address and the name are the variables.
Mulvey, in arguing against deference, hands over the strongest proof of the point. If contemporanea expositio predates Chevron, Skidmore, and the administrative state — if courts were already crediting long, consistent, contemporaneous readings as evidence of meaning centuries before any deference doctrine existed — then the post-Loper posture of “persuade, not control” is not a novel shrinking of the interpretive task. It is a return to the task’s older form. The agency’s experience was consulted before it was ever deferred to. Loper Bright did not diminish the act of interpretation. It restored it to an earlier venue and an earlier name, and the name happened to be one the Court declined to write.
There remains the objection that this is too clean — that an interpretive act whose output can no longer control, only persuade, is a different act in every way a litigant cares about, because the stakes have changed. The answer is that the stakes were never as fixed as the word “control” implied. Chevron’s deference did real work in the ordinary case, and for forty years it delivered genuine, day-to-day stability; that much should be conceded plainly. But the stability was always contingent and revocable, never structural. It was conditioned on a threshold finding of ambiguity that a court could decline to make. It was defeasible by the major questions doctrine whenever the stakes grew large. It was escapable through the formality gates of Mead, and reversible under Brand X whenever an agency changed its mind — which meant the same statute could carry two opposite “reasonable” meanings in a single decade, each binding until the next election made it not. An agency operating under Chevron never held a stable output. It held a contingent one, vulnerable to its own reconsideration and to the next administration’s.
So Loper Bright did not introduce instability into a stable system. It moved the instability from one source to another — out of the agency’s vulnerability to its own reversals and into the court’s vulnerability to its own judgment. The output was always going to wobble. Loper Bright changed the hand that shakes it. That is a real change, and a deliberate one, but it is a change in who bears the instability, not in whether the task produces it.
Set the three together and the shape is clear. The locus of authority moved, on purpose. The vocabulary changed, on purpose. The output’s instability was relocated, not created. And through all of it, the hermeneutic act — the thing a judge’s mind actually does with an ambiguous text and a long administrative record — did not move at all, because it was never the agency’s to lose. It was only ever the agency’s to perform first.
This is why deference is harder to confess after Loper Bright, and why “harder to confess” is not the same as gone. The Court did not relabel the task because the relabeling was trivial. It relabeled it as part of a serious, deliberate effort to relocate authority — and the task survived the effort anyway. A judge reading “feasible” still reaches, as judges always have, for what the people who administered the word came to understand it to mean. The opinion now calls that reaching by another name, or by no name. The reaching is the same. The interpretive task outlived its doctrines because it was never a doctrine. It was the work the doctrines were arguing about.
Sources
Cases
Kennedy v. Braidwood Mgmt., _ U.S. _ (2025).
FCC v. Consumers’ Rsch., _ U.S. _ (2025).
Bondi v. VanDerStok, _ U.S. _ (2025).
Loper Bright Enterprises v. Raimondo, _ U.S. _ (2024).
National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005).
United States v. Mead Corp., 533 U.S. 218 (2001).
Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
Skidmore v. Swift & Co., 323 U.S. 134 (1944).
Secondary Sources
Abbe R. Gluck, A Year After Loper Bright: Textualism, Shadow Skidmore, and a New Major Questions Exception, SCOTUSblog, Clear Statements series (Oct. 16, 2025).
Ryan P. Mulvey, No Signs of a Skidmore Revival at the Supreme Court, Americans for Prosperity Foundation (July 17, 2025).
Lucerna Juris 