Supreme Court Signals Interest in Major Economic Liberty Case


The U.S. Supreme Court will meet on Friday in private conference to consider the current crop of petitioners seeking review of their respective cases. Originally, that batch of petitions was scheduled to include Courtney v. Danner, an appeal stemming from a terrible opinion by the U.S. Court of Appeals for the 9th Circuit upholding a monopolistic law in Washington state. But then something very interesting happened. Yeserday, the Supreme Court requested a response from the victorious Washington agency explaining why its lower-court win should be allowed to stand. That's notable because the agency initially waved its right to file such a response. Someone on the Supreme Court apparently thinks this case deserves more attention.

What's so special about the case? Courtney v. Danner asks whether the Privileges or Immunities Clause of the 14th Amendment provides any meaningful protection for economic liberty from overreaching state officials. The 9th Circuit effectively held that it does not. But that ruling by the 9th Circuit is wrong about both the original meaning of the 14th Amendment and about the correct application of the Supreme Court's 1873 precedent in The Slaughter-House Cases. The state agency now has until April 25 to deliver its response.

To be sure, none of this guarantees the Supreme Court will take the case; but it does suggest the 9th Circuit's dubious conclusions have raised a few red flags. That's a good start.