This Week’s Brief: October 21

After the furor of the first two weeks of the Court’s term, the week of October 21 was markedly more placid. The Justices did not hear oral argument in any merits cases and predictably did not issue any decisions yet in argued cases. We do have the first opinion of the term, but it’s only an opinion relating to one of the Court’s orders on Monday. On a separate note, while the Justices didn’t garner many headlines in the courtroom, Justice Ginsburg grabbed the spotlight on Wednesday night for being awarded a very prestigious prize by the Berggruen Institute. So after a quiet week for the Justices (or for eight of them, at least), here’s your quick brief for the week of October 21.


This Week:
Decisions: 0
Opinions Relating to Orders: 1
Oral Arguments: 0
Cert Grants: 0

O.T. 2019:
Cases Decided: 0
Cases Remaining: 48
Weeks Left in Term: 35


The busiest day at the Court this week was the first one, though it hardly could be said to have been busy at all. The Court released an orders list from last Friday’s private conference. The list didn’t make many headlines, and the Justices didn’t add any new cases to their docket.

What is somewhat noteworthy, however, was the Justices’ vacatur and remand of the lower court’s disposition in Chatfield v. League of Women Voters. This case concerns a challenge to gerrymandered electoral districts in Michigan and had been on the Court’s docket since this past May. But at the end of June, a 5-Justice majority held in Rucho v. Common Cause that federal courts have no constitutional role to play in claims alleging excessive partisan gerrymandering. (I reviewed Common Cause for this blog here.) As a result, the Justices threw out the district court’s order in Chatfield and remanded the case back to the district court with instructions to dismiss any of the case’s partisan gerrymandering claims that cite the Constitution or federal law. Any claims alleging that Michigan’s gerrymandered maps are illegal under state law, however, certainly remain justiciable (note that the case will have to be remanded to Michigan state court).

The Monday orders list did spawn the first opinion of the term in Lipschultz v. Charter Advanced Services (MN), LLC. This case concerns Voice over Internet Protocol (VoIP) services and whether a state can regulate a company that provides VoIP services. In short, both the district court in this case and the Eighth Circuit Court of Appeals said that states can’t regulate VoIP service providers. The Eighth Circuit reasoned that since the Federal Communications Commission (FCC) has a policy against regulating the provision of VoIP services, that policy preempts any state law or entity that does attempt to regulate a VoIP service provider. The Justices in their order denied cert review. This is, of course, a win for Minnesota-based Charter Advances Services, who provides VoIP services to local Minnesotans.

Justice Thomas (joined by Justice Gorsuch) penned a short opinion concurring in the denial of cert, focusing on the scope of preemption. Under the Supremacy Clause of the Constitution, any state law that conflicts with U.S. treaties, federal law, or the Constitution itself is preempted and necessarily void. Applying the preemption doctrine to Charter Advanced Services, suppose we had a Minnesota state law saying that state agencies can regulate VoIP providers and a federal law stating that they cannot. Here, the federal law would preempt the Minnesota state law. But Thomas points out that this isn’t really the case in Charter Advanced Services. There isn’t an actual federal law on the books that prohibits VoIP regulation; it’s a policy of a federal agency that prohibits VoIP regulation.

This unnerves Thomas, noting that he “doubt[s] whether a federal policy—let alone a policy of nonregulation—is ‘Law’ for the purposes of the Supremacy Clause.” Does the FCC’s policy of nonregulation of VoIP service providers really have the same, full force and effect as would a federal statute, passed by Congress and signed by the President, that does the same thing? Thomas isn’t so sure. Moreover, he points out that giving preemptive effect to agency policies transfers power from the Legislative to the Executive and Judicial branches. Executive agencies could, in effect, make and enforce “law” via agency policy even if they decline to act (a policy of “nonregulation”), Thomas notes. And the courts, if they interpret such a policy as “law” under the Supremacy Clause, would open up a “freewheeling judicial inquiry into the facts of federal nonregulation,” rather than abide by their traditional role of determining whether state and federal law contradict one another.

However, since Charter Advanced Services did not challenge the “underlying basis of the preemption theory” and instead focused solely on the FCC’s preemption of state regulation of VoIP service providers, Thomas (plus Gorsuch) doesn’t see a need to grant review for this case.


Tuesday morning, the Justices issued their first of two miscellaneous orders this week. Tuesday’s was in BP, P.L.C. v. Mayor and City of Baltimore. Baltimore sued British Petroleum (BP) and a number of other multinational energy corporations in Maryland state court on charges related to global climate change. BP sought to remove the case to federal court, but a federal judge denied the motion and remanded the case back to Maryland state court. BP then petitioned the Justices to stay the remand while the parties litigated where the case should take place, but the Justices refused and kept the case in state court. Justice Alito recused himself from the petition’s consideration, presumably because of a financial conflict of interest (Justices often recuse themselves when they hold stock or other financial interests in parties to cases pending before the Court).


On Wednesday, the Court issued its second miscellaneous order this week, this time in Seila Law, LLC v. Consumer Financial Protection Bureau (CFPB), the merits case currently on the docket about a constitutional challenge to the structure of the CFPB. In the order, the Court appointed Paul D. Clement, a partner at Kirkland & Ellis and former U.S. Solicitor General under President George W. Bush, to brief and argue the case on behalf of the side that seeks to uphold the current structure of the CFPB.

Also of note, Justice Ruth Bader Ginsburg was honored by the Berggruen Institute Wednesday night, receiving a $1 million prize for being a “lifelong trailblazer for human rights and gender equality.” Beginning in 2016, the Institute has awarded the prize annually to a philosopher or scholar from the U.S., Great Britain, or Canada. The Institute said Justice Ginsburg will donate the hefty award to nonprofits and charities of her choice


The Court held no proceedings on Thursday.


The Court met for its weekly private conference, at which it routinely reviews the petitions on its docket and decides whether to grant review for any of them. Some high profile petitions the Justices are still considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights. Box has been relisted SIX times since first appearing at a private conference on April 23, 2019.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law that prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law (and others like it in cities and states around the country) under the Supremacy Clause of the Constitution. The Justices have yet to discuss this case at a private conference.
  • Chiafalo v. United States. This case concerns the constitutionality of “faithless electors,” or members of the Electoral College who vote for a different presidential candidate than the one whom a majority of the voters in a state chose. The questions presented are (1) whether a state can dictate how an elector casts his/her vote and (2) whether a law that penalizes an elector for voting “faithlessly” violates the elector’s First Amendment rights. Chiafalo has yet to be discussed at a private conference.
  • Lilley v. New Hampshire. This case involves a challenge to a Laconia, NH city ordinance that prohibits a woman from publicly exposing her breast “with less than a fully opaque covering of any part of the nipple.” Three women charged with violating the ordinance challenged their convictions on the ground that, since the regulation applies to women but not to men, it violates the Fourteenth Amendment. The question before the Court is whether Laconia’s city ordinance violates the Equal Protection Clause of the Fourteenth Amendment. The Justices first discussed Lilley at their October 1 long conference.
  • Thompson v. Hebdon. This case concerns a challenge to an Alaska state law that caps personal contributions to election campaigns at $500 per year. The Ninth Circuit upheld the $500 limit, reasoning that it was obligated to follow circuit precedent as opposed to the Supreme Court’s plurality decision in Randall v. Sorrell (2006). The question before the Court is whether Alaska’s $500-contribution-limit law violates the Free Speech Clause of the First Amendment. The Justices will discuss Thompson at their November 1 conference.
  • City of Boise, Idaho v. Martin. This case involves two Boise, ID city ordinances that make it a misdemeanor to camp or sleep in public places within city limits. The Ninth Circuit held that the ordinances violate the Eighth Amendment when the city enforces them against the homeless. The question before the Court is whether generally applicable laws that criminalize public camping and sleeping violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. Martin has yet to be discussed at a private conference.
The Week Ahead

Next week will be another dead week for the Court. The only thing currently on the Justices’ calendar is their weekly private conference on Friday, November 1. It’s possible we’ll see another miscellaneous order or two sometime during the week. The Court resumes hearing oral arguments on Monday, November 8 (the beginning of its November Sitting).

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