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Certiorari and Stinson Deference

On June 16, 2021, The Federalist Society's Administrative Law & Regulation Practice Group hosted a teleforum on "Certiorari and Stinson Deference." The US Supreme Court recently signaled a retreat from deference to agency guidance in Kisor v. Wilkie, in which the Court narrowed judicial deference available to agencies construing their own ambiguous regulations. But what about judicial deference to the US Sentencing Commission, the agency housed in “within the Judicial Branch,” and which Justice Scalia derided as a “junior varsity Congress,” making policy choices that should be committed to the legislature? In Stinson v. United States, the Supreme Court held that courts should defer to the commentary the Sentencing Commission issued construing their formally adopted sentencing guidelines, unless they are “inconsistent with, or a plainly erroneous reading of,” the relevant guideline. The Stinson Court required such deference even if the commission’s interpretation “may not be compelled by the guideline text.” Do constitutional due process and the rule of lenity preclude Stinson deference when commentary to a sentencing guideline would increase a sentence? Do courts owe deference to guidelines commentary that appears to expand the scope of the sentencing guidelines? Post-Kisor, may courts defer to commentary without first determining whether the pertinent guideline is ambiguous? Post-Kisor, must courts apply canons of construction like the rule of lenity before granting the agency deference? And, practically speaking, what might the Supreme Court be looking for to select the best vehicle for reconsideration of Stinson deference from among the pending cert petitions? * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Featuring: John P. Elwood, Partner, Arnold & Porter Moderator: Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance