Recently, there has been some discussion, by admirers of Justice Scalia, of what is the Justice’s worst opinion. Mike Paulsen argues it is Employment Division v. Smith, where Scalia for the Court interpreted the Free Exercise Clause to provide less protection for those who seek religious exemptions from general laws. Mike Ramsey mentions both Whitman v. American Trucking (expansive view of Congress power to delegate to the executive) and Gonzales v. Raich (expansive view of Congress necessary and proper power) as possibilities.
Scalia’s views on the nondelegation doctrine are potentially important. While the justices on the right have supported limits on Congress’s commerce power, there has been no similar efforts as to Congress’s power to delegate. There are several reasons for that but one important reason is that Scalia would not have gone along.
In my view, though, Scalia’s worst opinions are his series of opinions defending the Chevron doctrine. There is a reasonable argument that if Scalia had not been on the Court, the High Court would never have adopted the broad Chevron doctrine. The Chevron decision itself, written by Justice Stevens, was probably never meant to have adopted the broad rule of deference that it has become. Instead of adopting a categorical rule that required deference to agencies for both pure questions of law and mixed questions of law and fact, it was probably intended merely to hold that the particular statute at issue in that case – the Clean Air Act – allowed the executive deference as to the particular type of decision in that case.