I investigate the conventional wisdom that courts are more likely to uphold federal agency policies made through notice-and-comment rulemaking. I find that Supreme Court Justices have different preferences for deference, but overall, are actually less likely to show deference in rulemaking cases. However, the evidence does not suggest that this is due to justices voting more ideologically due to the greater stakes in rulemaking cases as implied by previous research. I then investigate potential selection effects at the circuit court and certiorari stages that could cause rulemaking cases to lose at the Supreme Court. The results offer no evidence that deference differs between circuit courts and the Supreme Court. While the Supreme Court may disproportionately opt to review rulemaking cases, it does not appear to do this in order to systematically discipline lower courts. Finally, I examine elements of the rulemaking process itself that may affect judicial review. Greater participation in rulemaking correlates with deference, as does an agency’s choice to regulate less rather than more. The puzzling negative relationship between rulemaking and deference remains unresolved, but, contrary to previous research, preliminary results suggest that justices may defer more to agency rulemaking on more salient issues where stakes are highest.
