Supreme Court Preemption Cases Are Fascinating … Really!

On Monday, the Supreme Court agreed to hear a preemption challenge to Maryland’s attempt to encourage new energy generation … WAIT! Don’t go just yet!

The consolidated cases aren’t themselves earthshattering to many court watchers (Hughes v. PPL EnergyPlus, LLC, No. 14-614, & CPV Maryland, LLC v. PPL EnergyPlus, LLC, No. 14-623). Last year, the Fourth Circuit shot down the state scheme because it struck “at the heart” of the Federal Energy Regulatory Commission’s authority to set wholesale market rates.

But the circumstances surrounding the grants are (possibly) interesting for those who closely follow the court. The cases are part of the tiny number of those that bypass the court’s “relist” process, while at the same time part of a growing number of cases to be heard this term over the U.S. solicitor general’s recommendation.

No Relist.

Let’s first consider the fact that these cases weren’t “relisted.”

A relatively new—but important—procedure for court watchers, a relist occurs when the justices consider a petition for cert. at one of its private conferences but don’t take any action, instead setting the petition for reconsideration at an upcoming conference.

Relist Watcher John Elwood says that since February 2014 the court has almost routinely—because, you know, every unwritten Supreme Court rule has an exception—relisted cases before granting them, presumably to ensure that the case doesn’t have any “vehicle problems that might keep the Court from resolving the question presented.”

The major exception is cases coming out of the court’s “long conference.” Right before the justices kick off a new term, they meet to discuss all of the petitions that have been piling up over the summer recess. Elwood explained that the summer likely provides sufficient time to work out any kinks in petitions being considered at this conference.

Mayer Brown associate Michael Kimberly and Stanford Law student Kristin Liska recently wrote that—excluding long conference cases—only two cases from the Supreme Court’s 2014 term didn’t get relisted.

One was Harris v. Viegelahn, No. 14-400, which Elwood speculated was due to the court’s scheduling demands. The other was Glossip v. Gross, No. 14-7955, the lethal injection challenge where—as Kimberly noted in an Oct. 19 e-mail—“time was of the essence” because several of the petitioners were scheduled for execution.

“That means that over 97% of the argued cases were either granted at the first conference after the Court’s summer recess, or otherwise relisted at least once,” Kimberly and Liska wrote.

If this term’s numbers are similar to last term’s, that makes Monday’s preemption grants rare indeed.

‘CVSG’ Gone Bad.

The second notable circumstance surrounding Monday’s grants was that the cases were granted over the recommendation of the Solicitor General.

Last month I wrote about the court’s “CVSG” practice—Calls for the View of the Solicitor General—in which the court invites the federal government to recommend whether the court should hear a particular case or not.

I wrote that the SG’s office fared worse than usual last term, with the court rejecting its recommendations about 35 percent of the time.

The SG’s has filed only two CVSG briefs this term: in the preemption cases granted Monday and Bank Markazi v. Peterson, No. 14-770.

In both, the SG recommended that the court pass over the cases. In both, the Supreme Court granted review anyway.

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