In two weeks, the justices will meet for the “long conference”: their first regularly scheduled conference since early July. They will consider thousands of petitions for review that have accumulated during that time, but they will only grant a few. This post highlights four of the cases distributed for the “long conference,” involving agency deference, the Fourth Amendment, interstate compacts, and Congress’ power to criminalize cockfighting.
In Lewis v. Pension Benefit Guaranty Corporation, the Court has been asked to weigh in on the extent to which federal courts should defer to statutory interpretations by the Pension Benefit Guaranty Corporation when it is acting as a trustee of a terminated plan.
The question comes to the Supreme Court in a case filed by a group of retired Delta Airlines pilots. After Delta filed for bankruptcy in 2005, the PBGC – a federal agency tasked with protecting retirement incomes for Americans in private-sector retirement plans – stepped in to serve as the trustee of the airline’s retirement plan for pilots, which Delta ended in 2006. There wasn’t enough money in the plan to pay all of the pilots the retirement benefits that they had been promised, requiring the PBGC to make decisions about how to divide up the funds.
The plaintiffs in this lawsuit contend that the PBGC interpreted ambiguous ERISA provisions in a way that cost retired pilots “tens, if not hundreds, of millions of dollars over their lifetimes.” At the same time, the plaintiffs allege, the PBGC’s interpretations gave active pilots a “windfall.”
The U.S. Court of Appeals for the District of Columbia Circuit rejected the challenge to the PBGC’s interpretation, holding that courts should defer to that interpretation. The retired pilots came to the Supreme Court in June, asking the justices to weigh in. They note that “[i]f a private trustee had been in charge of distributing the plan’s assets,” its interpretations of ERISA would not have been entitled to any deference. And they suggested that the PBGC “itself gained from its construction” of the law: “by prioritizing the benefits of younger pilots,” they contend, the PBGC “could hold the Plan’s assets over a much greater time period and could earn for its own use large sums of investment income.”
The PBGC urges the justices to deny review. “It is well established,” the agency writes, that “PBGC is entitled to deference under Chevron USA v. Natural Resources Defense Council,” the Supreme Court’s landmark 1984 ruling on deference to an agency interpretation of a statute that it administers, whenever it is interpreting ERISA. The PBGC dismisses the pilots’ allegations as “wild,” stressing that “[i]t is critically important to correctly pay participants the benefits they are due under” ERISA – which, the PBGC insists, it does.
In Ohio v. Deuble, the state has asked the justices to take up two different Fourth Amendment questions arising from the state’s efforts to prosecute 21-year-old Daniel Deuble for (among other things) soliciting sex from a law-enforcement official who was posing as a 15-year-old girl on a social media app.
The case began when Deuble, after sending the undercover officer explicit messages and photos, arranged a meeting at an Ohio park. Deuble was one of two men in the area. The other man was not using his phone, but every time the undercover officer sent Deuble messages through the app, Deuble would go to his phone. Police officers detained Deuble and then sent one more “test” message to his phone to confirm that he was the person with whom the undercover officer was corresponding. When officers saw a notification of the test message on Deuble’s phone, they arrested him.
Deuble pleaded guilty, but a state intermediate appellate court later agreed with him that the trial court was wrong when it denied his motion to suppress evidence. After the Ohio Supreme Court turned down its petition for review, the state came to the Supreme Court, asking the court to weigh in first on whether law-enforcement officials had probable cause to detain Deuble based on what they knew about him from the app and his actions at the park. The second question is whether Deuble had any expectation of privacy in his phone notification screen, which allowed law-enforcement officials to verify his identity.
The state stresses that allowing the lower court’s ruling to stand could have an impact well beyond Ohio. “[T]he constitutional issues involved here,” it contends, “implicate a common type of police investigation” to catch sexual predators. And although the state acknowledges that cellphone owners may have “a heightened privacy interest” in their phones, it maintains that such an interest does not “extend to aspects of a cellular phone that are open to the public,” like a notification screen.
Deuble counters that he had been arrested before the test message was sent, even though the officers at that point lacked probable cause to make an arrest. At that point, he suggests, they didn’t know whether they had the right person. And as a result, he continues, the question of whether he had an expectation of privacy in his phone notification screen is moot, because his arrest violated the Fourth Amendment – and, in any event, the lower court did not address the question.
The compact at the heart of Berrier v. Delaware River Joint Toll Bridge Commission dates back nearly a century, to the 1930s, when Pennsylvania and New Jersey entered into an agreement to create the Delaware River Joint Toll Bridge Commission. Since then, the commission has owned and operated (as the name suggests) bridges between the two states.
The dispute in which the justices have been asked to weigh in does not involve a bridge, but instead a building that the commission built on the Pennsylvania side of the river near the Scudder Falls Bridge, which connects Bucks County, Pennsylvania, and Mercer County, New Jersey. The question is whether Pennsylvania can regulate construction of the building, which has since been completed. The U.S. Court of Appeals for the 3rd Circuit agreed with the commission that the text of the compact “unambiguously cedes Pennsylvania’s sovereign authority over building safety regulations.”
Pennsylvania came to the Supreme Court in June, telling the justices that if the 3rd Circuit’s ruling is allowed to stand, “the effects could be profound and far-reaching” – even going so far as to jeopardize “the future of such compacts.” Pennsylvania urged the court to “reaffirm” what Pennsylvania described as “its longstanding precedent—only a State’s express relinquishment of sovereignty will work a surrender.”
The commission countered that Pennsylvania simply has it backwards. The compact isn’t silent on the issue of the commission’s power to regulate the building. Instead, the commission asserted, the compact clearly gives the commission “broad powers” to buy and build on property and to take all action related to that property. Therefore, the commission concluded, the court should deny Pennsylvania’s petition.
Ortiz-Diaz v. United States is a challenge to Congress’ authority to criminalize cockfighting in Puerto Rico. In 2019, the plaintiffs in the case, who are involved in cockfighting in various ways ranging from breeding birds to creating “cockfighting-inspired art,” filed lawsuits in federal court in Puerto Rico to challenge the ban. They argued that the ban violated their First Amendment and due process rights, as well as the commerce clause and the territory clause, which gives Congress the power to manage all U.S. territories. The district court rejected that argument, and the U.S. Court of Appeals for the 1st Circuit upheld that ruling.
The challengers came to the Supreme Court in June, asking the justices to review the 1st Circuit’s holding that the ban on cockfighting does not exceed Congress’ power under the commerce clause. Comparing cockfighting to “horse racing in Kentucky, rodeos in Texas, and hunting in Montana,” the challengers tell the justices that cockfighting “is deeply ingrained in the island’s history, tradition, and culture. Congress did not make any effort “to show that cockfighting on the island of Puerto Rico affected interstate commerce,” they emphasize, and cockfighting in Puerto Rico does not have any connection to anything traded between states. Instead, they say, Congress opted to outlaw the practice because they thought it was “barbaric” and “inhumane.” “But this,” they stress, “was not Congress’s judgment to make.”
The federal government urges the justices to deny review, telling them that the ban on cockfighting falls within Congress’ power because it “regulates economic activity that substantially affects interstate commerce.” For example, the government notes, sponsoring or exhibiting cockfights for profit is economic activity that often involves animals and spectators from other states. Cockfighting can also spread disease, the government points out, as it did with the avian flu in Asia. And in any event, the government concludes, this case is a bad vehicle in which to consider the commerce-clause question because the ban could also be upheld under the territory clause.