Briefing Book 2026: Judicial Deference

Prior to the 2023-2024 term of the U.S. Supreme Court, the landmark decision in the area of judicial deference to administrative agencies was Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), which was recently overturned by Loper Bright Enterprises v. Raimando (2024). This article provides a brief history of U.S. Supreme Court precedence on judicial deference and surveys the current status of deference amongst the 50 states.

Evolution of Judicial Deference

Before Chevron was decided in 1984, the controlling doctrine had been the decision in Skidmore v. Swift & Co. (1944), which directed courts to consider several factors that allowed the court to “give weight to” an agency’s interpretation of the law, but did not direct a court to give deference to such interpretation.

The Chevron decision, colloquially referred to as “the Chevron Doctrine” overturned the Skidmore decision and directed courts to defer to an administrative agency’s interpretation of the law in matters where the text of the policy is ambiguous, assuming the agency’s interpretation of the law is a permissible construction of the statute.

During the 2023-2024 term of the U.S. Supreme Court, a decision was handed down in Loper Bright Enterprises v. Raimando (2024), overturning the Chevron decision and directing federal courts to interpret the law, rather than rely on or defer to an agency’s construction of the law when the statute or regulation is ambiguous.

State Court Judicial Deference

State policies on judicial deference to administrative agencies vary widely. State policies generally fall into one of four categories:

• More Deference (22 states);
• Possible Deference (7 states);
• Possible Weight (6 states); or
• No Deference (15 states).

States that are categorized as “More Deference” tend to have elements of the Chevron doctrine present in the controlling decisions or statutes. These states may follow rulings that state a court “shall defer” or that require a court to “give great weight to” an agency’s interpretation of a law. Additionally, caselaw in these states may consider the technical expertise of an agency in carrying out related laws.

States that are categorized as “Possible Deference” may direct a court to review the law de novo, but also direct the court to give deference if it is reasonable under the circumstances. [Note: De novo is a legal term meaning “from the beginning,” without being bound by a previous entity’s judgment.] State courts in this category would not be required to give deference.

States that are categorized as “Possible Weight” tend to have more of a Skidmore approach, by giving weight to certain factors that may weigh in the favor of an agency’s interpretation. However, some state court decisions have also made distinctions between the terms “weight” and “deference” by stating that deference would require the court to follow an interpretation whereas weight allows for persuasiveness.

States that are categorized as “No Deference” may have caselaw that requires court to review the law de novo or explicitly directs a court to give no deference to an agency’s interpretation. The majority of these controlling policies appear to have been handed down post-Chevron, with some states recently overruling previously controlling deference caselaw through either a new decision or by passing a statute.

Judicial Deference in Kansas

In Kansas, courts follow precedent that requires no deference be given by a court to the interpretation or construction of a statute by an administrative agency. In 2013, the Kansas Supreme Court held:

In dealing with a statute in a workers compensation appeal, no deference is due…To be crystal clear, we unequivocally declare here that the doctrine of operative construction…has been abandoned, abrogated, disallowed, disapproved, ousted, overruled, and permanently relegated to the history books where it will never again affect the outcome of an appeal.

During the 2025 Session, the Kansas Legislature considered SB 222, which would require courts to give no deference to a state agency’s interpretation of a statute, by instructing a court to “exercise any remaining doubt in a way that is consistent with an individual’s fundamental constitutional rights.”

SB 222 was amended and passed by the Senate in 2025. The bill is in the House Committee on Judiciary, where it received a hearing in 2025.

By Jordan Milholland and Natalie Nelson.
See Judiciary, Corrections, and Juvenile Justice for more.