Page:BNSF Railway Company v. Michael D. Loos.pdf/26

Rh change of heart. For if Nierotko is as relevant as BNSF contends, then it must also be relevant that, back when Nierotko was decided, the IRS took the view that the term “wages” in the Social Security Act did not include backpay awards for wrongful termination. See 327 U. S., at 366–367. And if “wages” don’t include backpay awards for wrongful terminations, it’s hard to see how “compensation… for services rendered” might include damages for an act of negligence. Still, even with the complications that follow from executive agencies’ penchant for changing their views about the law’s meaning almost as often as they change administrations, a plea for deference surely would have enjoyed pride of place in BNSF’s submission not long ago.

But nothing like that happened here. BNSF devoted scarcely any of its briefing to Chevron. At oral argument, BNSF’s lawyer didn’t even mention the case until the final seconds–and even then “hate[d] to cite” it. Tr. of Oral Arg. 58. No doubt, BNSF proceeded this way well aware of the mounting criticism of Chevron deference. See, e. g., Pereira v. Sessions, 585 U. S. ___, ___–___ (2018) (Kennedy, J., concurring). And no doubt, too, this is all to the good. Instead of throwing up our hands and letting an interested party––the federal government’s executive branch, no less–dictate an inferior interpretation of the law that may be more the product of politics than a scrupulous reading of the statute, the Court today buckles down to its job of saying what the law is in light of its text, its context, and our precedent. Though I may disagree with the result the Court reaches, my colleagues rightly afford the parties before us an independent judicial interpretation of the law. They deserve no less.