Overview
Law360 quoted Pantelis Michalopoulos in a June 29 article titled "Kennedy's Exit Could Make it Harder for FCC to Win in Court." The article discusses how a sampling of Supreme Court Justice Anthony Kennedy's telecom-related decisions over the years yields a nuanced view of when a government agency's original interpretation — particularly at the Federal Communications Commission (FCC) — should be given preference. While Justice Kennedy, who will retire by July 31, recently suggested probing the Chevron deference standard's underpinning, he has also accepted its application in the past.
Michalopoulos tells Law360 that Justice Kennedy's use of Chevron here does not create a gulf from his recent skepticism of the precedent. The standard is still very much at play, he says, but Justice Kennedy is now questioning whether it has been used too liberally. "If you look at his most recent statement, he simply called for a re-examination of the premises upon which Chevron rests. So I don't view this as inconsistent with his application of Chevron some 17 years ago."
The full article can be read at Law360 (subscription required).