The U.S. Supreme Court did something May 30 it’s only done two other times since 2001: it requested a reply in a case pending before the court.
Let’s back up…
Its common practice for a party to waive a response to a cert. petition when the petition is “clearly without merit,” according to a leading Supreme Court treatise, Stephen M. Shapiro et al., Supreme Court Practice §6XVII.37(k) (10th ed. 2013). That saves substantial time and money, the treatise said.
Often, such petitions are denied. But sometimes the Supreme Court doesn’t agree that the case is patently meritless. In such a case, the court will typically call for a response.
A so-called CFR “may reflect the belief of one or more Justices that the petition is prima facie meritorious, or that it is complex or difficult enough to make presentation of the views of the respondent appropriate,” the treatise says.
And in fact, that’s what happened in January in No. 16-739, Scenic America, Inc. v. Department of Transportation.
The case relates to “Chevron deference”—the doctrine under which courts defer to federal agencies’ interpretation of statutes.
In Scenic America, the D.C. Circuit deferred to the Federal Highway Administration’s interpretation that permitted the use of commercial electronic billboards that periodically change advertisements. The petitioner says such deference was inappropriate because the agency was interpreting agreements between the FHA and individual states—not federal statutes.
The Supreme Court wanted to hear more about that.
Significantly, several justices have indicated recently that they’d like to take another look at Chevron and other agency deference rules. The court’s newest justice, Justice Neil M. Gorsuch, has suggested that deference to agencies actually violates separation of powers.
So, the Supreme Court Jan. 30 called for responses from the defendants, which were filed May 1.
In those responses, the defendants don’t argue that the deference question isn’t important enough for the Supreme Court’s review. Instead they argued that the case doesn’t actually present that issue.
The lower court didn’t incorrectly apply Chevron deference “for the simple reason that it does not purport to apply it,” one response said.
Now we have arrived at the Supreme Court rare action. The court May 30 asked the petitioners to reply to the defendants’ responses.
Supreme Court Practice is a painstakingly comprehensive treatise about the goings-on at the high court (see, e.g., Section 14.9(a) on seating arrangements at counsel’s table). But it doesn’t seem to even mention the possibility of the court calling for a reply.
That may be because the Supreme Court doesn’t do it that much.
A quick search on the Supreme Court’s docket page revealed only two other times where this occurred in the past decade and a half.
In 2002, the Supreme Court requested a reply from capital defendant Sean Smith, aka Dolan Darling. After receiving the reply, the Supreme Court denied his petition. Smith has apparently been able to avoid the execution of his sentence since then, however. The Orlando Sentinel reports that his capital sentence was vacated this past March.
More recently, the court in 2009 asked the federal government to file a “sur-reply”—that is, a reply to the petitioner’s reply—in a request to stay removal pending appeal. The Supreme Court denied that request, too.
Interestingly, the counsel of record for the federal government in the 2009 case was then-Solicitor General Elena Kagan. That year she served as the Obama administration’s top lawyer at the Supreme Court.
So does the latest call for a reply indicate that the Supreme Court will take up Scenic America’s case? We’ll find out after the company files its reply June 13.
To find out, be sure to follow along by signing up for a free trial to United States Law Week.
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