Is This the Supreme Court's Next Big Economic Liberty Case?

In its decision last month in the case of St. Joseph Abbey v. Castille, the U.S. Court of Appeals for the 5th Circuit struck down Louisiana's requirement that only licensed funeral directors be permitted to sell caskets, handing a victory to the monks of St. Joseph Abbey, who now enjoy the right to build and sell their traditionally-made wooden caskets without unnecessary government interference. "The great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for regulation," the 5th Circuit declared. "The funeral directors have offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none."

At the Appellate Daily blog, Michelle Olsen explains why this important case now has the potential to land before the U.S. Supreme Court:

In Powers v. Harris, the Tenth Circuit upheld Oklahoma's casket-sale law, mainly out of deference to the legislature. The court was uncomfortable "substituting [its] view of the public good or the general welfare for that chosen by the states." A bill to change the law had been introduced three times in the Oklahoma House, but not passed.

The Tenth Circuit found that sometimes states have legitimate reasons for preferring certain industries, for instance to attract business to the state. It is best to leave legislating to the legislators, the court concluded.

In March 2005, the Supreme Court declined to review the Tenth Circuit decision. Now, eight years later, with four new justices, it may have another chance with the monks' Fifth Circuit win and a refreshed circuit split.

As Olsen notes, the Supreme Court declined to take up the 10th Circuit case from Oklahoma in 2005 despite a clear split between it and a 2002 ruling by the 6th Circuit against a similar casket-sale regulation in Tennessee. Unlike the 10th Circuit, which upheld the licensing scheme as a matter of judicial deference to lawmakers, the 6th Circuit actually bothered to examine the arguments made by Tennessee officials in support of their regulation. Having thus performed the basics of judicial review, the 6th Circuit was left with little alternative but to voice open contempt for the state's flimsy position. "Tennessee's justifications," the 6th Circuit held, "come close to striking us with the 'force of a five-week-old, unrefrigerated dead fish.'"

Today's "refreshed circuit split" is equally sharp, with the 10th Circuit's judicial passivity standing in contrast to the 5th Circuit's holding that Louisiana's casket-sale licensing requirement is "nonsensical" and possesses "no rational basis." As Olsen notes, we may soon learn if the current Supreme Court has any interest in finally settling the matter.