The Volokh Conspiracy

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Noteworthy cert denials on today's orders list

SCOTUS turns away more original jurisdiction cases, declines case to overrule Smith, and rejects latest Grimm appeal.


Today the Court did not issue any opinions, but we did get a 41-page orders list. There were several noteworthy cert denials.

First, the Court denied review in two original jurisdiction cases. Montana and Wyoming sued Washington over the denial of port access. And New Hampshire sued Massachusetts over the latter's taxation of nonresidents. (Dare I say taxation with representation?). Justices Thomas and Alito maintain that the Court must exercise its original jurisdiction. Thus, they continue to perpetually dissent. Earlier this term, the Court denied review in Texas v. California, which challenged the latter's "travel ban." At this point, the Court does not seem open to any original jurisdiction cases, beyond the tedious water disputes. Sorry, ambitious state attorneys general.

Second, the Court denied cert in Ricks v. Idaho Contractors Board. This case squarely presented the question whether Employment Division v. Smith should be overruled. And it was a perfect vehicle to reconsider Smith. This appeal doesn't involve any hot-button issues like LGBT rights. Rather, the petitioner "cannot provide his Social Security number as a condition of obtaining work without violating his religious beliefs." This case was initially scheduled for conference in December. It lingered in shadow docket limbo for six months. On June 17, after Fulton, Ricks filed a supplemental brief. Today, the Court promptly denied the petition. There is not even a GVR, as the Fulton opinion was so hopelessly narrow. We know there are three votes to overrule Smith. This case, apparently, was not enough to entice Justices Barrett and Kavanaugh. I still don't think they are going to overrule it. Smith will be here for some time.

Third, the Court performed a cleanup. Two weeks ago, the Court decided California v. Texas. But the Court did not resolve the status of a cert petition filed by the House of Representatives. Today, the Court denied cert in U.S. House of Representatives v. Texas. Here, the Court ducked the issue of whether the House has standing to litigate such issues.

Fourth, the Court denied cert in PricewaterhouseCoopers LLP v. Laurent. The Court CVSG'd this ERISA case in October. In May, Acting SG Prelogar opposed cert. And the Court followed that recommendation.

Fifth, the Court denied review in Comcast Cable Communications v. Promptu. This case would have answered a question unresolved in Arthrex: "Whether administrative patent judges are 'principal' or 'inferior' Officers of the United States within the meaning of the Appointments Clause." This question is now irrelevant because the Director can review the decisions of APJs.

Sixth, the Court denied review in Gloucester County School Board v. Grimm. This case has been floating around for years. Originally, Grimm's case arose during the Obama administration. The eight-member Court granted cert in October 2016, one week before the election. After the change in administrations, the Trump Education Department withdrew a guidance document. At that point, the Court vacated the Fourth Circuit's decision, and remanded. Later, the Fourth Circuit held that the school board violated Title IX. And today, the Court denied cert. Justices Thomas and Alito would have granted cert. My suspicion? The Court does not want to touch this case. For now, the Court just kicks the can down the road. As more courts develop precedents concerning Title IX, it will become very difficult for the Supreme Court to reverse those precedents. Reliance interests, after all. Once you get to a critical mass of circuits that reach a certain outcome, it becomes impossible to change course. I see a parallel to the same-sex marriage litigation, as well as the Title VII litigation. If every lower court rules like the Fourth Circuit, the Court can allow this change to happen in the law without intervening. However, the Eleventh Circuit may soon rehear en banc a case that presents this issue squarely. Much like with Bostock, another Eleventh Circuit case, the Supreme Court would have to intervene.

The Court issued several other shadow docket opinions, which I will write about later.