by Jerry Cayford
On June 28 this year, the U.S. Supreme Court overturned Chevron U.S.A v. Natural Resources Defense Council (1984). This was big, since that Chevron decision was the heart of the administrative state’s legal authority. Chevron formalized the executive civil service’s authority over complex decisions of practical governance, such as how to interpret and enforce tax law, ensure food safety, regulate trains and airlines, fund and oversee education, manage elections, and everything else we fight about nowadays. The nice view is that Chevron empowered expertise.
The cynical view (widely held) is that, through Chevron, a conservative Supreme Court gave the Reagan Administration power to ignore Congress’s laws by letting executive agencies twist their meaning at will; now, as those agencies have become more liberal and courts more conservative, a conservative Court has overturned Chevron in Loper Bright Enterprises v. Raimondo (2024), taking that same authority to twist the law’s meaning and transferring it from executive agencies onto courts. As Justice Elena Kagan says flat out, in her Loper Bright dissent, “The majority disdains restraint, and grasps for power.” I would not contradict the cynical view, on pain of appearing naïve. But I argue that there is a much bigger story here, one about how we as a society became threatened by authoritarianism and confused about truth.
That 1984 Chevron legal decision had an intriguing feature: it was considered, by its author Justice John Paul Stevens and his colleagues, to be nothing special, an uncontroversial repetition of common sense and long-standing precedent. How can that be? How could unanimous Supreme Court justices not know they were making history and remaking the law? We once wondered how the Earth could be spinning and circling the sun, yet we couldn’t feel the motion. The same puzzlement applies to the vast movements of history as to planetary movement: situated inside them, we don’t feel them directly; we have to figure out what is going on.
As Chevron evolved from its modest birth, it became a growing problem and its overturning an inevitability. There are familiar ways to tell this story (technocrats brought down by hubris; a pendulum swinging back to common sense), but a more illuminating, less familiar way situates it in intellectual history. The initial invisibility of Chevron’s Earth-shaking importance hints that Chevron shook the Earth by rejecting a century of intellectual development. Much more is going on than garden-variety power struggle.
The Case
Chevron was about interpretation. It became focused on “deference” in interpretation, i.e. whose interpretation should prevail. The case concerned an Environmental Protection Agency rule defining “stationary source” under the Clean Air Act, a rule the D.C. Circuit Court of Appeals rejected. The Supreme Court rebuked the D.C. Circuit for imposing its own policy judgments, and instructed lower courts to defer to executive branch agencies in interpreting ambiguous laws those agencies implement. After all, the agencies are the experts. From this small, technical issue, Chevron brought us all to the question, who’s in charge?
Chevron defined a two-step process for courts to assess agency interpretations of statutes: first, “If the intent of Congress is clear, that is the end of the matter” (Chevron 842) because courts obey Congress; second, if intent is not clear, then the court gives deference to a reasonable agency interpretation. When the unanimous Supreme Court decided Chevron, it apparently intended “deference” and “reasonable” (and “clear”) to reiterate the precedent Skidmore v. Swift & Co. (1944). Skidmore urged courts to “resort for guidance” to an agency’s “informed judgment” if it displays “factors which give it power to persuade” (Skidmore 140). Chevron’s instruction, then—give deference to reasonable agency judgments—might plausibly just paraphrase Skidmore, which apparently the Court originally intended.
It is no secret how Chevron went from reiterating Skidmore to changing the world. Antonin Scalia, who joined the Supreme Court (from the D.C. Circuit) two years after Chevron, crusaded successfully (along with Reagan Administration agencies) for a much more radical interpretation (known as “Chevron deference”): treat legislative ambiguity as an implicit delegation of authority from Congress to an executive agency to make policy; and once an agency has Congress’s delegated authority, then courts must accept the agency’s reading of the law, persuasive or not.
The choice the two cases represent is quite fundamental: in deciding what to do or believe, should you adopt an answer you find persuasive, or should you follow an authority you trust? In place of Skidmore’s instruction to “resort for guidance” to “informed judgment” that has “power to persuade”—which left courts in charge and agencies with an obligation to make a persuasive case—Chevron gave agencies authority, as long as their interpretations of law were “permissible,” meaning the words of an ambiguous law could be construed as the agency construed them. Where interpreters under Skidmore were constrained by their responsibility to persuade other people, interpretation under Chevron was constrained, supposedly, by responsibility to the law’s text. As we will see, constraint-by-text is a vacuous concept, so Chevron’s practical effect was to transfer power away from the people who formerly had to be persuaded onto now-unconstrained executive agencies.
The Issue
Interpretation is, of course, a huge topic not just in the law but everywhere, in every place there is language. It is especially important in the study of literature, and there are scholars who cross disciplinary boundaries to study interpretation in both law and literature, prominent among them Stanley Fish. The link between literary studies, law, and interpretation gets us, inevitably, to philosophy, as Fish makes explicit in the first sentence of the introduction to his big book, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies: “It is one of the theses of this book that many of the issues in interpretive theory can be reduced to a few basic questions in the philosophy of language” (1). Philosophy of language looms large in the intellectual context of Chevron.
But can’t we skip the philosophy and just cut to the chase? Philosophy tells you where to look for answers, and how. A false philosophy sends you wrong; a false philosophy widely taught can send a society wrong. Scalia’s false philosophy sent Chevron wrong, and with it much of the administrative state’s competence for forty years. We are concerned with practical matters. Long before people are behaving badly, they are thinking badly. Bear with the philosophy for a while.
Scalia’s approach to legal interpretation is known as “textualism,” most prominently articulated in his book A Matter of Interpretation: Federal Courts and the Law (1997). Fish, in an article whose title states his blunt bottom line—“There Is No Textualist Position” (2005)—summarizes Scalia’s argument:
[I]t would be simply undemocratic [says Scalia] “to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.” It is what is “said” not what it is “intended” that is “the object of our inquiry.” “Men may intend what they will; but it is only the laws that they enact which bind us.”…In Scalia’s argument and the arguments of other self-identified textualists, the issue is always framed in this way—as a choice between something materially available (the text and the built-in sense it bears) and something absent and speculative (the intention of its author). (Fish 630, quoting Scalia 16-17)
Textualism can have a misleading “Duh! Of course!” quality, as if correcting simple mistakes. But no one doubts that the object of inquiry is the meaning of the law. A concrete analogy may help here: it’s like Scalia telling astronomers, “Your objects of inquiry are celestial, so look at the sky instead of your telescope!” Choosing which to look at is not a real choice, because one is the means for seeing the other. (Thinking we know the object independent of the means is the characteristic error of “formalism,” which we will get to in the philosophy below. Textualism is a species of formalism.)
Fish’s rebuttal to Scalia follows textbook philosophy of language. Meaning comes from interpretation, and interpreting is figuring out the words’ purpose from their context, figuring out what message the words were intended to convey. So, intention/purpose/context (different expressions for the same thing) comes first, then interpretation, then meaning, always in that order. Meaning can never be prior to interpretation. (Meaning is the celestial object, and interpretation is the telescope). If the meaning of something seems obvious to you (“built in”), it is because you have instantly assumed a context and done an interpretation (grabbed a telescope). Until seen through an interpretation, words are just black marks on a page, no more meaningful than raindrops on a windshield. This point may seem academic, but it leads us to a very practical principle in philosophy of language: words don’t constrain; only people constrain.
Scalia identifies an important problem that he thinks textualism solves: “The practical threat is that . . . judges will in fact pursue their own objectives and desires” (Scalia 17-18); the danger is that people will twist the law’s meaning to suit themselves, and intention seems too abstract or psychological to constrain interpreters’ desires. This threat is very real. However, the meaning of the law’s text (Scalia’s solution) cannot constrain interpreters at all, because text only has meaning after interpretation. As Fish says, “Theoretically, nothing stands in the way of any string of words becoming the vehicle of any intention. Wittgenstein famously asks: ‘Can I say “bububu” and mean “If it doesn’t rain I shall go for a walk”?’ The answer is yes” (634, quoting PI p. 18). In the right context, any words could mean anything. Despite textualism’s implicit rhetoric of rigorous fidelity to law’s meaning, its practical effect is exactly the opposite, leaving interpreters entirely unconstrained. So, Scalia has raised a real threat, but given it only a specious response.
Keep this “practical threat” of nefarious interpreters squarely in view. It is a revealing gauge of the enormous change in society represented by the shift from Skidmore to Chevron: the shift from persuasiveness to authority. Leaving authorities unconstrained, the practical threat of their self-interest unanswered, is the very essence of an authoritarian society. If, as philosophy of language tells us, people can only be constrained by people, not by abstractions like “meaning,” then nefarious interpreters can only be constrained by the wider community. Skidmore met that practical threat by judging interpretations by their persuasiveness, making interpreters responsible to people in a variety of institutional roles: an agency uses its expertise to divine Congress’s intentions and build a case persuasive to a court that answers to higher courts, and all of it in public; that is, Skidmore mandated checks and balances across the community’s diverse perspectives. Chevron replaced Skidmore’s persuasiveness to the community with delegation of authority to the most capable interpreter, under the false textualist presumption that those interpreters are constrained by textual meaning. An authoritarian society lets its important decisions be made by authorities who do not have to be persuasive to the rest of society.
A graphic, almost comical, demonstration of how Chevron deference left the practical threat unmet and allowed the administrative state unbridled authority is Brand X (2005), the decision controlling net neutrality. The Supreme Court in Brand X accepted the Federal Communications Commission’s contention that cable internet service is not a telecommunications service. (Let that sink in.) The lone dissenter, Scalia, called this “an implausible reading of the statute”; the Ninth Circuit (which got reversed here) found it unpersuasive; and pretty much all the legal commentators thought it was obviously wrong. Even the eight-member majority did not seriously dispute that the FCC’s interpretation of the Communications Act was wrong. What they said, though, is that unless an alternative interpretation (to the FCC’s) “was the only permissible reading of the statute” (984, emphasis in original), which “the statute unambiguously requires” (985), the court must defer to the FCC. Basically, the FCC said “bububu” means “If it doesn’t rain I shall go for a walk,” and the Supreme Court said, well that seems kind of silly, but if you say so. Between the lines, Brand X reads as if Scalia is pleading that Chevron has not so crippled this court as to require us to accept silly and disingenuous agency arguments, while the other eight reply yes, it has, and since you talked us into making our Chevron bed, we all have to lie in it. To no one’s surprise, since Brand X the FCC has reversed its position on cable internet service every time the presidency changed parties.
We might think good riddance, then, Loper Bright has solved our Chevron problem. The threat of nefarious interpreters, though, reminds us to be a little more cynical and less naïve. The argument between the majority’s opinion and Kagan’s dissent is not about how to restore the checks and balances of an interpretive community but about which authority is most capable of interpreting the law. Loper Bright transfers authority from executive branch agencies to courts, but it retains Chevron’s complacent textualist presumption that the authoritative interpreter (now the courts) is constrained by the text’s built-in sense. It continues the infatuation of jurists with formalism, specifically textualism, which Fish calls “evidence of just how strong a hold a mistake may have on an entire discipline” (645). Something less innocent than a “mistake,” though, is suggested both by textualism’s complete failure to meet the “practical threat” and by its odd reanimation decades after formalism’s burial by the wider intellectual community.
The Revolution
By the time Chevron was decided in 1984, philosophy of language was many decades into a revolution. I use “revolution” in something like the sense made famous by Thomas Kuhn’s The Structure of Scientific Revolutions (1962): a new paradigm for thinking, within which everything is reinterpreted. Ludwig Wittgenstein (1889-1951), the philosopher who most changed our ideas about language, is often considered the center of that revolution. Wittgenstein spent the last twenty-two years of his life mostly at Cambridge, not publishing but his ideas leaking out to the world “variously misunderstood, more or less mangled or watered down,” as Wittgenstein put it in the preface to his posthumously published Philosophical Investigations. The dismissal of words as constraints that Fish quotes above is most famously articulated as Wittgenstein’s paradox of rule-following: “This was our paradox: no course of action could be determined by a rule, because any course of action can be made out to accord with the rule” (PI 201). Wittgenstein deals at length, then, with exactly Scalia’s “practical threat” of how stability and constraint in meaning are possible when rules (laws, words) can be interpreted any way interpreters want. The logic of Wittgenstein’s argument applies as much to interpretation of evidence in understanding truth as it does to interpretation of text in understanding rules; both pass through meaning and community persuasiveness, which feels paradoxical and is revolutionary.
Citing one thinker and one field, however, badly understates the scope of the revolution. Philosophers sometimes call it the “linguistic turn,” but in various guises a new focus on meaning as preliminary to knowledge went far beyond philosophy and pervaded 20th century intellectual life. You can see how it would by thinking of the challenge “Define your terms!”: a revolution in how we understand meaning—how we think “defining” works and what a “term” is—will affect everything else. When our understanding of meaning changes, so does our understanding of rules, logic, rationality, objectivity, truth and a great deal more. To keep this manageable, I will stick to a core theme of this grand paradigm shift: the defeat of formalism by anti-formalism. In the first six brilliant pages of “Going Down the Anti-Formalist Road” (the introduction quoted earlier to Doing What Comes Naturally, 1989), Fish sketches the clash of these two comprehensive and incompatible paradigms: “Formalism…is not merely a linguistic doctrine, but a doctrine that implies, in addition to a theory of language, a theory of the self, of community, of rationality, of practice, of politics” (5); “many of the essays in this book begin by challenging the [formalist] linguistic thesis and end by challenging everything else” (6). These two worldviews don’t allow for hybrids or compromises. As Fish puts it, “once you start down the anti-formalist road, there is no place to stop” (2).
“Formalism” is a hard-to-define term, but here’s a rough idea of it. For us to know anything objective, you and I and a lot of other people all have to see it the same way. A scientific observation (e.g. an eclipse), a calculation (e.g. balancing a bank account), a judgment (e.g. taking my garden gnome is theft), are somehow coordinated between us so we all agree. But how? At first glance, we each seem to have our own subjective ideas in our own heads about each thing. Why aren’t they all different? Lots of theories have been proposed over the centuries for how things in our separate heads can all be the same thing. Most of those theories go something like this. The thing out there (whether physical or abstract) is what it objectively is—the eclipse; the arithmetic; the law—and we are all hardwired the same (sense organs, rational brains), whether by evolution or by God, with a capacity to recognize that thing. So the separate, subjective things in our separate heads all turn out to be the same because they are copies of that one thing out there, and those copies came to each of us through our separate but innately identical faculties. That’s formalism (derived ultimately from Plato’s Theory of Forms).
In a Kuhnian revolution, anomalies accumulate against the dominant paradigm until a new paradigm overthrows the old one by making sense of those anomalies as well as of settled knowledge. Kuhn applies this model to specific disciplines, but I extend it to our whole intellectual world, so a concrete timeline will help us keep this abstract shift straight. Putting it coarsely, formalism (under various labels, such as “foundationalism”) was our dominant paradigm from the early 17th to the early 20th centuries. But, from, say, 1880 to 1920, anomalies that clashed with formalism accumulated in different fields of thought. Then, from, say, 1920 to 1960, a new and anti-formalist paradigm took shape and made sense in many disciplines. Since then, anti-formalism has been disseminating across Western society (a dissemination of which both Kuhn’s and Fish’s books are expressions).
A certain share of anomalies accumulated around the formalist idea of innately similar human capacities. (Think of the surprising unreliability of eyewitness testimony, or Victorian anthropologists finding rationality to be culturally relative.) However, the main thrust of the anti-formalist revolution challenges the other part of formalism: the idea that we can correct or constrain our perceptions or interpretations by comparing them to an objective reality. Anti-formalism points out that objective reality is only available to us through subjective experiences. That is, all our evidence is subjective—whether the object in question is physical or abstract—and only at the end of a wholly subjective process does the objective part fall out as a conclusion. Fish’s argument against Scalia’s textualism (a species of formalism, remember) is an example: Scalia would constrain interpretations by comparing them with the objective meaning of the law’s text; Fish replies that we have to interpret the text to know its meaning, so interpretations can only be compared to other interpretations, never directly to the objective meaning of the law.
The American Pragmatist Charles Sanders Peirce gave one of the earliest expressions of the essential anti-formalist insight in his “pragmatic maxim” (1878): “Consider the practical effects of the objects of your conception. Then, your conception of those effects is the whole of your conception of the object.” In other words, I turn my eyes and get a visual impression of a tree, I reach out my hand and get a tactile impression of bark; but the conclusion “There is a tree” adds no information at all, since it is a mere summary of those practical effects on my senses.
It can sound like pragmatists and anti-formalists are denying the existence of objective reality, thereby provoking indignant defenses of truth in response. But they are only denying reality’s explanatory relevance. Remember the telescope: if we want the most accurate view of invisible celestial objects, we have lots of ways to choose the best telescope; but what we can’t do is compare what the telescopes show us to what the stars “really” look like. Theoretically, there may be two things here—the real object and my perception; the text and my interpretation—but pragmatically, only the subjective side is available to me: all my forms of corroboration are perceived or interpreted, just more subjective experiences. Claims of fidelity to objective reality, then, like fidelity to a text’s built-in meaning, are mere gestures; the work is all in persuasively aligning perceptions among people.
Paradigm Shift
The pragmatic maxim was groping for an intuition: that our appeals to objective reality are somehow red herrings, beside the point. Knowledge (interpretation) is a competition among ideas, but the players are all our ideas; objective reality is not a player—nor is it the referee, as formalism would have it be (more like the trophy). In the early 20thcentury, the intellectual world turned its attention to language, and began to make sense of that intuition. The linguistic turn introduced a new complexity: our knowledge is not snapshots of reality but facts made of language, language that humans invent. Instead of a reality that imposes itself on us through our senses, reality can now be seen as a cacophony of experience that we sort and group and categorize into words. The anti-formalist thesis no longer seems to deny reality when it asserts that choices people make for pragmatic reasons come first and shape everything we know.
Wittgenstein takes on the challenge of describing an anti-formalist alternative to the formalist view of meaning. If meaning is not, as the formalist thinks, an abstract object outside the mind that the mind grasps and brings inside—“the object for which the word stands” (PI 1)—then by what mechanism do many different people all have the same meanings in mind and use language for successful communication? This is Scalia’s and Fish’s question of constraint, but at a fully general level. Wittgenstein asks how we get language without copying it from reality, language from nothing. It is a task that every child accomplishes.
Wittgenstein brings us to an anti-formalist view of meaning by examining how we learn and teach words and then use them in practice. Constraint is quite literally employed as we correct, bribe, coerce and otherwise train children to use words the same way we do. In this picture, I, the new language learner, hear a word a few dozen times—any word; say, “tree” or “reasonable”—and I think I’ve got the gist of it. After a few thousand uses, including some mistakes, corrections, and discussions, I am a master of how to use the word. What I am doing from then on is making inductive judgments from this body of past experience about how to use the word in each new situation. And the same is true of everyone else: everyone has a body of some thousands or hundreds of thousands of past experiences with each word, and proceeds inductively to every new use.
The thing is, that’s all there is. Full stop. I have my thousands of experiences and my inductive inclinations, you have your different thousands and your own inclinations, and so does everyone else. Being sufficiently similar and trained by people from the same linguistic community, we by and large don’t confuse or mislead each other when we use words. But there is no place in this picture for an abstract object like “meaning,” let alone for that nonexistent abstract object to coordinate between our separate inner worlds. Wittgenstein has shown how every word can have millions of meanings in millions of heads, and yet we can agree in using words the same way. In Wittgenstein’s picture of meaning, my usage can only be measured (or constrained) by the community of language users. Only other people can say, “No, I don’t think you have that quite right,” “Here’s how I would put it,” “No, your reading of that statute is implausible.” Skidmore, centered on persuasiveness to the community, articulated a vision of jurisprudence and the role of courts compatible with this Wittgensteinian view of language.
Anti-formalism swept the Western intellectual world. By the time Fish was writing, he could say, “Formalism as a doctrine has been under attack for a long time now and few will acknowledge subscribing to it” (Anti-Formalist Road 5). When Scalia’s Chevron dictated textualism to the legal world, everyone had known for decades that textualism is nonsense. But the anti-formalist revolution is one of those vast movements of history that we can’t feel directly from inside them. “Everyone knows” really only means that a part of the intellectual world explicitly knows formalism is no longer viable, and the rest of the intellectual world has implicitly adapted, but the practical world continues its (formalist) habits unperturbed. (Those habits will fuel the coming backlash). Unable to feel the movement of history, we can mistakenly believe history has not moved. A revolution’s fade from consciousness, though, does not mean it did not succeed.
Anti-formalism’s pervasive influence in law illustrates the point. “Legal Realism Now” (1988) tells the story of legal realism, a movement born partly from Pragmatism—directly overlapping in the pragmatist philosopher John Dewey—and whose hey-day is contemporaneous with Wittgenstein and Skidmore. “The legal realists wanted to replace formalism with a pragmatic attitude toward law…based on human experience, policy, and ethics, rather than formal logic” (474). And they succeeded:
Legal realism has fundamentally altered our conceptions of legal reasoning and of the relationship between law and society. The legal realists were remarkably successful both in changing the terms of legal discourse and in undermining the idea of a self-regulating market system. All major current schools of thought are, in significant ways, products of legal realism. To some extent, we are all realists now. (467)
Yet, when this passage was written in 1988, legal realism was widely considered a mere historical episode, swept aside in the 1960s. The idea expressed here is that a successful revolution, having achieved its goals and assimilated the mainstream, may disappear into everyday life where we no longer feel it as a movement. The article goes systematically through current schools of legal thought—rights theory, legal process, law and economics, critical legal studies, feminist legal theory, law and society—and shows them all expressive of the major themes of legal realism. After a Kuhnian revolution, everyone sees through the revolution’s new paradigm. This is what I am claiming about the larger anti-formalist revolution of which legal realism is one part.
Secondly, note that this passage makes a direct connection between formalism and “the idea of a self-regulating market system.” In 1988, that laissez-faire idea was just starting to roar back into fashion with the rise of neoliberalism, the Chicago School’s law-and-economics, the Washington Consensus, and other expressions of the movement associated with Thatcher and Reagan. That movement is often characterized as a backlash against popular culture (the 1960s, the sexual revolution, feminism, etc.), but that explanation is too small. In the story I am telling, it is the whole, successful, cross-disciplinary, hundred-year, anti-formalist revolution that provoked the neoliberal backlash of which Chevron is one part.
The Backlash
Now, “backlash” is a slightly belittling term. It implies a movement whose energy all comes from what it is lashing against, a movement with little substance, which can delay but not change the march of history it wants to reverse. And so it is here. The formalism of neoliberalism and legal textualism has no genuine intellectual support; it is a policy-driven creature of the practical, political world. Even neoliberal free-market economics, the backlash’s most substantial part, never had any real legitimacy in serious economics: there is no live economic theory that markets are self-regulating, and there hasn’t been since before the New Deal. The idea that there is was just propaganda for deregulatory policies. As economist Joseph Stiglitz puts it, “Neoliberalism is not really a program based on economic theory; it is a political agenda.” Capitalizing on three centuries of formalist habits and mainstream discomfort with the new anti-formalist paradigm, the backlash rejects the need to be persuasive to the wider intellectual community.
Against our whirlwind review of 20th-century intellectual history, then, we can see Chevron as a microcosm of the backlash, and Skidmore a microcosm of the anti-formalist revolution. The choice they offer is quite fundamental: believe what is persuasive, or believe what a trusted authority says. It can seem a hard choice, with pros and cons either way. But we are concerned with practical matters. When we use Scalia’s “practical threat” of self-interested interpreters as our gauge, there is all the difference in the world: formalist illusions about natural constraints on our beliefs, whether from words or markets or objects, leave that threat unanswered. Chevron’s textualist presumption that fidelity to the text will constrain interpreters is just not true, leaving unconstrained the authority Chevron delegated to agencies to interpret laws. (I have written previously about this same choice in theories of truth, and how choosing authority over persuasiveness leaves conspiracy theories unconstrained.) The formalist choice, then, is crucial conceptual groundwork for authoritarianism. As with many another bad choice, the consequences may not be immediate. But practical action follows conceptual groundwork, and unconstrained authority, over time, incentivizes self-interested actors to meet whatever criteria will gain them delegation of that authority.
So, where are we today? It’s unclear. Just as bad precedents accumulated in the wake of Chevron, so bad policies, corporate concentration, and economic failure accumulated during the neoliberal backlash. Yes, these bad consequences have finally moved us to action. Chevron has been overturned and neoliberalism discredited; an anti-monopoly movement against unconstrained corporate power has revived industrial and competition policy; today feels like a moment of change. But maybe we’re simply reacting to problems, oblivious to the intellectual history recounted above, and to the fire outside the pan. Legal scholars still earnestly debate textualism versus purposivism (the latest label for context/intention), despite there being no textualist position (per Fish). Loper Bright’s rejection of Chevron, far from resurrecting Skidmore’s anti-formalist requirement of persuasiveness, focuses on which new authority most deserves our deference. And the authoritarianism we conjure by choosing deference is, ominously, still rising.