Supreme Court

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.

NEXT: Supreme Court Tackles Definition of Domestic Violence

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  1. I need to send I.J. some more dough.

    1. Good point – we all should.

    2. Indeed. I think they’re the best force for liberty out there among the non-profits and think tanks.

    3. If I ever win the lottery I am going to just volunteer to work there. Hell, I may do that when I retire, assuming I actually ever am able to retire.

      1. Just leave D.C. 😉

        1. Absolutely.

  2. Thomas has previously indicated that, “in an appropriate case” the court should revisit the Slaughter-House debacle.

    Is this not such an appropriate case?

    Time to step up Clarence!

    1. The problem is that this case is so bad that it will be hard to get five justices to agree to go after the Slaughter-House cases. Likely Roberts and Kennedy will find too many other, more narrow and easy excuses to overturn the decision.

      The court’s holding that the right to use navigable waters only extends to uses that don’t involve making a profit sets up a very easy way to overturn the decision on narrow grounds without touching the Slaughter House cases.

      1. It would be nice to see one of those ground-breaking, broad pronouncements confirming civil liberties again. How many years has it been since we’ve had one of those? Even the gun cases didn’t really slam the door on government abuses.

        1. Years. Both the Burger, Rehnquist and now Roberts’ courts specialized in narrow split the baby mealy mouthed decisions.

          Everyone likes to talk about this or that justice being the most influential. Really, the most influential justice of my lifetime has been Sandra Day O’Conner. Her poorly written, results driven, confused and narrow opinions really seem to be the template for how the Court works these days.

          1. John, bingo.

            Even her concurring opinion in Lawrence v. Texas fits the mold you describe as well as lacking what Pro-Lib (and all of us) wants.

          2. WAR ON WOMYN, JOHN!!

          3. In the old days, even justices that would piss you off could come down on the side of the angels. Like, say, Black or Brennan.

            One thing that’s gone horribly wrong, of course, is this recent total love of the state we see. That’s a problem for both the left and the right, but the former has embraced it far too much and to the extent that they are increasingly uninterested in protecting civil liberties that weaken government power.

            If I could kill one thing in the courts, it’s this idea of complete deference to the other two branches. Screw that. Their deference should be to the Constitution, not to “elected officials.” If we wanted that, we’d have skipped having an “independent” judiciary in the first place.

            1. Yeah I don’t know who invented the deference doctrine but it needs to go. Do you see the Executive Branch deferring to Congress or vice-versa? Not when they don’t want to, anyway.

              1. The whole concept of “deference” makes no rational sense. Either the statute is consistent with the Constitution or it isn’t. If it is, then there is nothing to be deferential about since the court doesn’t have the power to strike down valid constitutional laws. If it isn’t, then the law is invalid no deference required.

              2. Defer only to the two Cons: Constitution and Conscience. In that order.

            2. Also related: kill Chevron deference and make it de novo. That should be good for a laugh or two.

              1. My friend, Chevron deference is just the type of thing I was writing about yesterday regarding the state, and the state alone, getting to change the rules.

        2. Mostly they’ve done narrow changes.

          A series of cases did nicely expand the Confrontation Clause and improve trial by jury.

          1. Crawford and Washington?

            Scalia did the right thing in those cases.

      2. The court’s holding that the right to use navigable waters only extends to uses that don’t involve making a profit

        Jesus H. Christ. Just when I think they hit a new low.

        1. They actually held that. The privilege at issue here is the “right to use the navigable waters of the United States”. The plaintiff claimed they rule violated that. the Court said, your right to the water only extends to the right to navigate on it, not make a profit doing so.

          1. What the fuck? As if the whole fucking point of defining which waters are navigable wasn’t to make it illegal for private entities to engage in charging tolls, erecting hazards to navigation and otherwise hampering people from making a profit by transporting goods on said waters.

            1. Didn’t Vanderbilt win a case similar to this?

              1. Actually Gibbons vs Ogden and it was an interstate case involving ferrys from NJ to NY

                1. And the good guy in the case?

                  The answer is like kryptonite to progressives.

  3. That’s notable because the agency initially wavedwaived its right

    I guess Koch money doesn’t buy homophone distinction.

    1. The homophonebia around here is ugly.

    2. Also – DON’T TALK ABOUT LUCY!

  4. Randy et al filed just a week or two ago supporting review.

  5. Couldn’t this be considered a case of the state violating Federal anti-trust laws by granting a monopoly?

  6. The supreme kangaroo court cracks me up man.

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