(Bloomberg Law) -- Justice Neil Gorsuch achieved his decades-long goal of burying a legal principle that has empowered regulatory agencies at the expense of judges.

Gorsuch, 56, has frequently criticized Chevron, a 40-year-old precedent that tells courts in regulatory disputes to defer to an agency’s reasonable interpretation when the governing law is ambiguous. The court decided 6-3 along ideological lines Friday to overturn that decision in a case challenging a National Marine Fisheries Service regulation of herring fishermen.

“Today, the Court places a tombstone on Chevron no one can miss,” Gorsuch said in a separate concurrence, echoing a graveyard refrain he used two years ago in calling for its demise.

Participating in a decision that throws the doctrine out is a significant achievement for the first of three Trump appointees to the Supreme Court, who wrote opinions urging the justices to overrule Chevron while serving as a federal appeals court judge.

“He has a view that the courts are here to play an important role in protecting citizens, preserving liberty, and making sure litigants have a fair shake when they get in front of a court, and I think he sees Chevron as a threat to that,” said Latham & Watkins partner Roman Martinez, who argued one of the two of Chevron challenges.

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Family Ties

The Chevron decision that Gorsuch has long rebuked came in a legal fight over an Environmental Protection Agency regulation that played out while his mother, Anne Gorsuch Burford, was head of the agency. The Ronald Reagan appointee, like her eldest son, also believed federal regulators had amassed too much power at least within the EPA.

In her 22 months in office, Burford reorganized the EPA, cut its staff through attrition, and rolled back regulations. She touted in her 1986 memoir that she got the water regulations that were six inches thick down to less than half an inch.

Burford resigned in 1983 after being cited for contempt by the US House for failing to turn over records relating to the EPA’s handling of the $1.6 billion Superfund program Congress passed to clean up toxic and hazardous waste sites. His mother’s decision to resign upset Gorsuch, she said in her book.

“You raised me not to be a quitter. Why are you a quitter,” she recalled her son, then in high school, saying when he heard the news.

It’s hard to know if and to what extent Gorsuch’s views of regulatory overreach were influenced by his mother. But legal scholars note that the court deferred to the EPA in the case that upheld a Reagan-era deregulatory initiative against a progressive push for more stringent rules to curb air pollution.

“It is not a simple matter of if there’s less Chevron deference, there will be less regulation,” said Ilya Somin, a law professor at George Mason University Antonin Scalia Law School. “In some areas and under some administrations, there might be but in other administrations and other areas of policy, it might go the other way.”

Other Critics

In advance of the decision, some legal scholars rejected the idea that overturning Chevron represents a victory for Gorsuch.

“These are real people with real legal concerns at stake here and they’re the ones who win or lose cases, not judges or justices,” said Kristin Hickman, who teaches administrative law at the University of Minnesota Law School.

Hickman noted that Gorsuch wasn’t the only justice to express concerns about Chevron.

“Justice Thomas has been pretty clear that he is at least skeptical that Chevron passes constitutional muster,” she said.

The court’s leading conservative dissented in 2020 from the court’s refusal to hear a case challenging its Brand X decision, which Thomas said was in serious tension with the Constitution, the Administrative Procedure Act, and over 100 years of judicial decisions. Thomas wrote separately Friday to, as he said, “underscore a more fundamental problem: Chevron also violates our Constitution’s separation of powers.”

“It curbs the judicial power afforded to courts, and simultaneously expands agencies’ executive power beyond constitutional limits,” Thomas said.

Gorsuch though has been more vocal. His anti-regulatory views are expected to be a key part of “Over Ruled: The Human Toll of Too Much Law,” his new book scheduled for release in August authored with former law clerk Janie Nitze, according to a May press release from the publisher.

“I tend not to think about things as personal wins for them, but you can’t deny he’s been the champion of reigning back Chevron,” said Michael McConnell, who served as a judge on the US Court of Appeals for the Tenth Circuit with Gorsuch before he was confirmed in 2017.

Ordinary Citizens

When the court refused to reconsider Chevron when it was asked to in 2022, Gorsuch said in his dissenting opinion, “At this late hour, the whole project deserves a tombstone no one can miss.” He said that’s it’s ordinary citizens who get “unexpectedly caught in the whipsaw” when agency officials revise rules in the self-serving ways Chevron encourages.

During oral arguments in January, Gorsuch said he saw the disparate impact of Chevron routinely in cases involving “the immigrant, the veteran seeking his benefits, the Social Security disability applicant, who have no power to influence agencies,” while serving on Tenth Circuit.

It was those experiences as an appellate court judge that helped shape Gorsuch’s view of Chevron as something that tips the judicial scale in favor of the government over vulnerable populations, said former Florida Solicitor General Amit Agarwal, who now co-chairs Holland & Knight’s appellate litigation team.

“It seems like he’s concerned about the power gap between those categories of individuals on the one hand and the federal government on the other hand and that tells us something interesting about where he’s coming from on these issues and what he sees as the deeper philosophical problem,” Agarwal said.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

(Updates to include Roman Martinez quote in fifth graph.)

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