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.

Comments

[Sidney r finkel]

Gosh, a person refuses to provide his SSN on the basis that doing so would violate his religious belief. What a crock.

While not being a biblical scholar I think I can safely say that nowhere in the Bible does it say that providing an employer with an SSN is the road to eternal damnation. And didn’t Jesus say something about rendering unto Caeser that which is Caesar’s?

The case shows just how far the religous right, who think that they are above the law, who think that no laws apply to them, who think there very essence is threatened by things the the Social Security Administation are willing to go. Accede to them and Christian or Orthodox Jewish Sharia Law, here we come.

[Dilan Esper]

I am something of a “hawk” on sincerity claims (I think, for instance, Hobby Lobby’s and the Little Sisters of the Poor’s objections to Obamacare were completely insincere), but I don’t see why someone’s limited to formal religious texts in showing they are sincere about their beliefs. Plenty of religions represent the authority of pastors, church councils, and even the believer him- or herself, to interpret religious doctrine.

If the government can show that he isn’t sincere and just cooked up the argument to avoid paying social security taxes, sure, deny the claim. But there’s no reason to think this can’t be sincere.

[Sidney r finkel]

Sincerity is not the issue here. A willingness to participate in the community, to accept that reasonable rules and regulations must sometimes trumps one’s religious beliefs, that no, society must not and cannot allow exceptions for beliefs which have no basis in logic, canonical writings or common sense is the mark of a truly religious person, not a selfish, self serving religoius zealot.

[David Nieporent]

One can argue that there should be no religious exemptions from any laws, though that’s kind of hard to square with the free exercise clause. One can argue that the standard for evaluating such claims should be lower than strict scrutiny.

But one cannot argue that only religious beliefs located in the New Testament are entitled to deference.

[Rev. Arthur L. Kirkland]

The Congregation Of Exalted Reason concurs. With relish.

[Michael Ejercito]

I wonder if denying original jurisdiction has the same precedential and collateral estoppel effects as a dismissal for want of a substantial federal question.

[Dr. Ed 2]

I can see NH v. MA getting very ugly…