Governments have the challenging task of responding to health pandemics, educational outcomes, the climate emergency and the rise of new technologies. Policymakers increasingly rely upon expert knowledge, to the extent that Jasanoff referred to scientists as a ‘fifth branch’ of government (The Fifth Branch: Science Advisers as Policymakers). Consulting expert evidence is likely to enhance policies, but it creates problems from the perspective of both democracy and accountability. In this blog post we reflect on the claims made in an article published in Cambridge International Law Journal, on the role courts can play in relation to complex decisions and the increased reliance on experts.

Complexity, Democracy and Delegation

Public autonomy provides the foundation for public power. Through the exercise of political rights, individuals provide the democratic foundations for State action. Law gains legitimacy when public discourse filters up to decision-makers (Finlayson and Rees, ‘Jürgen Habermas’). Yet, expertise threatens these ‘democratic ideals and practices of equality and contestation’ (Alfred Moore, Critical Elitism, p3). There is a risk that the public may not understand and engage with—or challenge—public decisions. Simply ‘following the science’ will likely narrow the scope for deliberation.

With the rise of expertise has also come an increased need to delegate decisions to more specialised bodies, resulting in what Vibert calls the ‘The Rise of the Unelected’. Hammond in ‘Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science’ highlights how in the USA agencies went from offering industry knowledge to ‘being asked to set standards under significant scientific uncertainties’ (p757). Likewise, the EU established many new agencies in the 1990s, such as the European Food Safety Authority, the European Medicines Agency, and the European Chemicals Agency that could bring additional expertise when compared to the Commission (see also Vos, ‘EU Agencies, Common Approach and Parliamentary Scrutiny’).

Public participation in administrative decision-making varies (Donnelly, ‘Participation and expertise’), but agencies are generally more insulated from public opinion, and knowledge asymmetries can make engagement difficult. Judicial review provides a crucial safeguard here; courts ensure that the decision-maker does not go beyond the scope of the powers conferred upon them and ensure effective legal protection of rights. But this task becomes more difficult when the statutory scheme requires considerable scientific and technical understanding. Justice Kagan explains the difficulties clearly in her dissent in Loper Bright. How, she asks, is a court to determine what is a ‘distinct population segment’ of ‘vertebrate fish or wildlife’ species under the Endangered Species Act i.e.‘[w]hat makes one population segment “distinct” from another’ (p452).

Complex Questions and the Standard of Judicial Review on Questions of Law

In our comparative study of Germany, the EU and the United States, we examine how courts are approaching questions of law in complex areas such as competition, telecommunications, food safety, and fisheries policy. While differently rationalised, and utilising different methods, our study shows how when reviewing complex decisions, courts increasingly defer to decision-makers, even on questions of law.

Perhaps the best-known approach is so-called Chevron deference as adopted in the United States. Chevron offers a structured approach to deference on questions of law and sets out two questions for a court to consider when reviewing an agency’s interpretation of a statute. First, a court should consider legislative intent and, where clear, the court ‘must give effect to the unambiguously expressed intent of Congress’ (p842). Where the statute ‘is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute’ (p843). The court cannot substitute its own interpretation. Chevron deference thus claims to be fulfilling the wishes of the legislature. But there is also an institutional justification. Stevens considered that what amounts to a plausible interpretation out of several possible meanings to be more of a policy decision.

In Germany, deference is the exception and is less explicit. In theory, Article 19(4) of the German Constitution places a general duty on the judiciary to review administrative decisions fully on grounds of law and fact. According to the prevailing Normative Ermächtigungslehre, there is an exception to full review where a statute grants an agency discretion. Generally, legislative intent must be explicit in the conferring statute, but courts can also infer discretion, sometimes unconvincingly. The rationale given by the Bundesverwaltungsgericht (Federal Administrative Court) is that ‘a legally prescribed decision-making programme can be so vague due to the high complexity or particular dynamics of the regulated matter and its interpretation in the course of reviewing the administrative decision can be so difficult that judicial review reaches its functional limits’ (Case 6 C 42/06, BVerwGE 130, pp39, 48). Altogether, administrative courts are rather quick to limit their review and to assume agency discretion, even if the law is ambiguous. Tellingly, the Bundesverfassungsgericht (Federal Constitutional Court) is finding violations of Article 19(4) of the German Constitution because of courts applying an (overly) superficial standard of review after having inferred legislative intent.

The EU Courts are also required by the Treaties to review the legality of administrative decisions (Articles 263 and 267 TFEU). As set out by the General Court in Aboca, ‘questions of law in respect of which the Court is to carry out a comprehensive review include the interpretation to be given to legal provisions on the basis of objective factors and whether or not the conditions for the application of such a provision are satisfied’ (para 70). Despite claiming to carry out full review, there are ad hoc cases where the EU Courts have undertaken only a limited review when a complex assessment is involved (Craig, ‘Law, Fact, and Discretion’). Such deference is not explicit and often involves the re-categorisation of a question of law as instead involving either scrutiny of discretion or the application of law to the facts.

Loper Bright: A Return to Courts?

A significant change occurred in 2024 when the US Supreme Court moved away from deference on questions of law. Unlike the EU and German courts, which have been finding ways to leave greater discretion to the administration, the US Supreme Court in Loper Bright held that resolving statutory ambiguity is still a question of legal interpretation. While it is still possible for Congress to delegate authority to agencies, courts must identify whether there has been such a delegation and the boundaries of that delegation. The court must then assess the agency’s decision-making within those limits to see if it is ‘reasoned’ (395). According to the US Supreme Court, agencies have no greater expertise in legal interpretation than courts.

Loper Bright is generally dismissive of expertise as relevant to the interpretation of statutes and instead insists upon the traditional role of courts as experts interpreting the law. Without deference to expertise the decision suggests ‘that judges should interpret statutes in a piecemeal fashion, divorced from a meaningful understanding of relevant science, technology, or policy implications’ (Kumar ‘Scientific and Technical Expertise after Loper Bright’). The effects of Loper Bright remain to be seen, but we may expect to see more mistakes such as that of Justice Gorsuch when referring to nitrogen oxide as ‘nitrous oxide’ (Ohio v Environmental Protection Agency). There is also the potential that courts will start to defer implicitly and on an ad hoc basis, as in Germany and the EU.

Courts instead as Information Catalysts?

We suggest judicial review can bring value in another way. Despite deferential language, courts are enhancing scrutiny of the decision-making process, rather over questions of law. Even in Germany, where procedural issues have been historically understood as of secondary importance, there has been an increased focus on them. There is a real value that courts can play here in contributing to the public sphere.

In the USA, the standard of review to be applied is found in the Administrative Procedure Act of 1946 (APA) i.e. whether a decision is ‘arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law’. US courts initially rejected almost all challenges under the APA, but later developed a doctrine known as ‘hard look’. As set out in State Farm, ‘the agency must explain the evidence which is available, and must offer a “rational connection between the facts found and the choice made”’ (p43). US courts have since required that agencies demonstrate the basis of their decisions. The engagement of US courts with agency decisions offers lay descriptions of complex science that can contribute to public discourse (Hammond). Courts lack the institutional and personnel capacity to remake the decision, but they check with the agencies and ask critical questions. Political journalists, the scientific community and lawyers then gain access to expert knowledge in a more understandable way and push agencies to find comprehensible answers.

EU Courts in theory apply a deferential threshold of ‘manifest error’ when reviewing cases with complex and uncertain facts (Balkan-Import Export). Even in such cases, the EU courts impose a duty of careful and impartial examination of the evidence inTechnische Universität München. Where scientific assessments are involved, the Court in Pfizer required a ‘scientific risk assessment carried out as thoroughly as possible on the basis of scientific advice founded on the principles of excellence, transparency and independence’. As a standard of review, the duty of careful and partial examination ‘ensures that the Commission obtains appropriate scientific advice’ while also ensuring ‘that the Commission has considered all the relevant issues’ (Türk, ‘Oversight of Administrative Rulemaking’).

Looking at these developments we might instead reframe courts as what Scott and Sturm call ‘informational catalysts’ ( ‘Courts as Catalysts’, p586). Courts in this way contribute to public autonomy but also the rule of law in ensuring participation, adequacy of information, as well as transparency and accountability (Scott and Sturm, p572). We can thus see judicial review as contributing to the public sphere by rendering evidence more accessible and providing a public forum to scrutinise decision-making. Judgments can help reduce complexity and offer reference points for legal practitioners, academics and other interested parties.

Conclusion: Can Courts Help?

Returning to our starting point. It seems courts can help, but not in the way we have traditionally thought. Courts should not be seeking to offer decontextualised interpretations of statutes or to remake agency decisions when a complex assessment is involved. Where the real contribution of courts can be is in assessing the foundations of decision-making and translating those decisions for the wider public. While this perhaps works best in the US with its ‘adversarial legalism’ (Kagan), the EU experience suggests the development of a similar approach. Whether courts will take on this new role as information catalysts, depends on judges, but also structural factors. The time and energy a judge can devote to an individual court case is undoubtedly a question of resources. If we want to preserve and strengthen courts as a forum for social learning, we must equip them accordingly.

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Posted by Emily Hancox, University of Bristol and Sonja Heitzer, Ludwig-Maximilians-Universität München