Why did the Supreme Court deny certiorari in the California Sanctuary City Case after 13 Relists?

Justices Thomas and Alito would have granted certiorari. Justices Gorsuch and Kavanaugh, apparently, would not.

|The Volokh Conspiracy |

Monday's order list provides a fascinating opportunity for SCOTUS kremlinology. I previously blogged about the Court's decision to GVR Andrus v. Texas, rather than grant cert. Here, I will blog about a single line in the list:

19-532 UNITED STATES V. CALIFORNIA, ET AL. The petition for a writ of certiorari is denied. Justice Thomas and Justice Alito would grant the petition for a writ of certiorari.

This case did not involve the Trump Administration's efforts to withhold certain funding from sanctuary cities. Rather, in this case, then-AG Sessions went on offense: he challenged the constitutionality of California's sanctuary state laws.

Ilya Shapiro and I wrote about the case in the WSJ. At the time, I predicted that the Supreme Court would rule against the Trump Administration on some, but not all of the claims. And in doing so, the Court could cement certain principles of federalism and the separation of powers–perhaps even with a 9-0 majority. For example, we wrote:

The first challenged statute, styled the California Values Act, limits how state and local officials may cooperate with federal immigration officials. Absent a judicial warrant, law-enforcement agencies in California are forbidden to provide federal authorities with information about an alien's release date. That prevents federal agents from taking custody of suspects at a secure facility, reducing the likelihood that the suspects will be caught and potentially putting federal officers in dangerous situations.

The Supreme Court held in Arizona v. U.S. (2012), which struck down some provisions of that state's strict immigration law, that states can't enact laws that interfere with Congress's plenary power over immigration. And Mr. Sessions argues that the California Values Act defies a 1996 federal law that bars state and local governments from prohibiting the exchange of "information regarding" an individual's immigration status.

The California Values Act, however, doesn't interfere with federal law, because, as the Court recognized in Printz v. U.S. (1997), Congress can't "commandeer" state officials. It is not a proper exercise of federal power to dictate how state law-enforcement agencies manage their resources and prioritize their missions. California's policy of noncooperation no doubt makes enforcement more difficult, but it doesn't constitute obstruction or interference.

Will we get a Supreme Court decision edifying the principles of federalism? Nope. What happened here?

We know that the case was relisted 13 times. John Elwood provided this count:

relisted after the January 10, January 17, March 6, March 20, March 27, April 3, April 17, April 24, May 1, May 15, May 21, May 28 and June 4 conferences.

Over the course of four months, I think Justices Thomas and Alito tried to prevail on their colleagues to grant review. They may have even circulated a dissent from denial of certiorari. Alas, nothing. Efforts to persuade the newest members of the Court, Justices Gorsuch and Kavanaugh, failed.

In the end, AG Sessions's signature legal case amounted to a cert-denied.

NEXT: Why did the Court GVR Andrus v. Texas, rather than grant cert?

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  1. I think what we may be looking at in this term is a new “Switch in time”, where the ‘conservative’ justices have just given up in the face of packing threats and the prospect of mobs knowing where they live. At least, it’s starting to look like that.

    Can’t have your house burned down over a case you didn’t take, would be their reasoning.

    1. Or Gorsuch and Kavanaugh thought Printz pretty clearly controlled and therefore there wasn’t a reason to grant review. That’s probably what happened. The only mystery is why Thomas joined Alito at all.

      1. I’m looking at the big picture here, the huge number of relisted cases ultimately rejected, big ‘gay’ rights ruling. There’s a theme here, it’s not individual, unrelated decisions.

        It looks to me like a critical mass of the ‘conservative’ justices are afraid to anger the mob. They’ve been rolled.

        1. The theme is that Printz controls the outcome in this case and that Gorsuch and Roberts thought the plaintiffs had the stronger textual argument in Bostock.

          1. So does Printz dictate 10 second amendment cases being dropped?

            1. No. And there may be different politics at play with regard to gun rights, but your “cower to the mob theme” is just conspiratorial nonsense The outcome in the sanctuary city cases and Bostock are based on well-established conservative principles you think judges should be using anyway. Just because you think Gorsuch screwed up his textual analysis doesn’t mean he wasn’t using it. And the textualists always claim that it shouldn’t consistently lead to conservative or liberal results anyway, because the text controls the outcome.

              You’re probably just upset that the principles didn’t lead to consistently conservative results, even though you must have known deep down that this was a strong possibility. Textualism doesn’t mean, “interpret the text in a conservative way that I like” and federalism doesn’t mean “only uphold state’s rights to implement conservative programs I like and resist liberal ones I don’t like.”

              1. As I said, it’s the big picture: They didn’t JUST issue a big ‘gay’ rights ruling, they also took a lot of cases that should have gone conservative on perfectly ordinary legal principles, and tossed them over the transom.

                Some of the 2nd amendment cases they refused were no brainers. NY mooted their case by replacing it with a law scarcely less obnoxious; You can take your gun to a range outside NYC, but you’re a criminal if you stop along the way.

                You didn’t even need to resort to the 2nd amendment to decide that against NY, it was a gross violation of the FOPA.

                And discretionary licensing of exercise of a civil right? How is that EVER permissible?

                There’s no way to justify what happened to all those gun cases on neutral legal principles. They’re deliberately refusing to enforce a basic civil liberty.

                1. We get it. You really like guns and the justices were probably being political in the gun cases. But just because they were being political in one set of cases doesn’t mean they were doing it in all cases on completely unrelated matters.

                  Interpreting Title VII this way had been a strong possibility for years. This wasn’t a surprise. Printz applying to the state’s role in federal immigration enforcement is also not a surprise. These results have nothing to do with the gun cases.

                  1. You know what? I own guns, sure, but haven’t actually shot one in about 12, 13 years. (Going to the range tomorrow with my wife to correct that.)

                    It’s not so much that I really like guns, as that my political perspective is that “All that is necessary for evil to triumph is for good men to do nothing.”, and that implies that good men have an obligation to be ABLE to do something. And a government’s respect for the right of its citizens to be able to defend themselves is an important leading indicator of how much reason it plans to give them to wish they were able to.

                    This is an explicit civil right, and the Supreme court is treating it like dirt. Just from a rule of law perspective, that stinks to high heaven.

                    “But just because they were being political in one set of cases doesn’t mean they were doing it in all cases on completely unrelated matters.”

                    Maybe not, but it might be the way to bet.

                    “Interpreting Title VII this way had been a strong possibility for years.”

                    Yes, yes, it has been. That doesn’t mean that it should have been, just means you could see the rot setting in.

                    1. The rot being textualism (leopard, faces, etc.)

                    2. No, the rot being outcome oriented judging. Which sometimes presents itself as some sort of originalism when they know the public will be watching, because “I ruled that way because I wanted to, and because you can’t stop me! Bwa ha ha!” is the sort of thing only Reinhardt could pull off properly.

                    3. No. Lol. Assume bad faith all you want, but that’s not what happened here. He used textualist reasoning to get to a result you don’t like. That’s it. It was bound to happen. And honestly, the only reason you’re mad is because it was about gay and trans people. The antipathy you and the other people freaking out about this is palpable and laughable. But in the end, like practically everything gay rights milestone, you won’t be negatively affected in any discernible way beyond the fact that you feel uncomfortable from because society and culture have changed for the worse compared to some mythical past that only exists in your imagination.

        2. Or maybe the theme is that the liberals had the better argument. I know it’s hard for you to grasp that possibility.

      2. Honestly because Alito and Thomas always toe the party line. Since a Republican administration wants this done their gonna try their hardest to do it.

    2. Or maybe Kavanaugh is just a Ted Cruz-type pansy and is afraid Ruth Bader Ginsburg might beat the hell out of him?

      1. To be fair, you really don’t want to go hand to hand with a zombie, it’s contagious.

        1. The walking corpses on that Court, pointlessly staggering about while raging incoherently, appear to be Alito and Thomas.

    3. No one ever, ever, disagrees with Brett in good faith, for honest reasons.

      It’s always part of a nefarious conspiracy, or under duress, or something.

      1. It’s a real “I never thought the leopards would eat my face” moment for everyone who promoted Gorsuch for his textualism and strong view of federalism.

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