The Supreme Court on Monday morning issued orders from the justices’ private conference on Friday, Jan. 21. In addition to taking up the issue of race in college admissions (covered here), the justices added two other cases to their docket for next term. One involves the power of federal district courts; the other tests the scope of the Clean Water Act.
The justices granted a petition filed by Axon Enterprise, which makes body cameras for law enforcement. The case arises out of the company’s efforts to acquire a competitor. When the Federal Trade Commission raised the prospect of bringing (and subsequently did bring) administrative proceedings because of antitrust concerns, Axon went to federal district court. It argued, among other things, that the administrative proceedings violated its right to due process because the agency plays multiple roles in the proceedings, serving as the prosecutor, the judge, and the jury. It also contended that the restrictions on the removal of the administrative law judges to whom the FTC’s administrative proceedings are assigned violate the Constitution’s separation of powers because the ALJs can only be removed for cause by the FTC commissioners, who in turn can only be removed by the president for cause.
The district court dismissed Axon’s complaint, holding that Axon should first raise its constitutional challenges in the administrative proceedings themselves. The U.S. Court of Appeals for the 9th Circuit upheld that decision. Axon came to the Supreme Court in July, asking the justices to weigh in both on whether the district court has the power to review constitutional challenges to the FTC’s structure and on whether the FTC’s structure violates the Constitution. The justices agreed to take up the first question, involving the district court’s power, but they declined to consider the second question.
The justices also agreed to hear the case of an Idaho couple, Michael and Chantell Sackett, for the second time. The Sacketts want to build a home on a plot of land that they own near Priest Lake, Idaho, but the EPA told them that construction on the land violated the Clean Water Act because their lot contained wetlands that qualify as “navigable waters” regulated by the act. In 2012, the Supreme Court unanimously agreed that the Sacketts could immediately litigate their challenge to the EPA’s order in federal court.
The couple returned to the court last fall, asking the justices to revisit their 2006 decision in Rapanos v. United States, which held that the Clean Water Act does not regulate all wetlands but did not produce a majority for the governing standard. The Sacketts now want the court adopt a test, proposed by a four-justice plurality in Rapanos, that would allow wetlands to be regulated only when they themselves have a continuous surface water connection to regulated waters. The court on Monday agreed to take up the Sacketts’ case and decide whether the 9th Circuit, in deciding the Sacketts’ case, used the proper test to decide whether wetlands are “waters of the United States” for purposes of the Clean Water Act.
Also in Monday’s orders, the justices turned down a request from House Minority Leader Kevin McCarthy to weigh in on the constitutionality of a House of Representatives resolution allowing proxy voting because of the COVID-19 pandemic. The lower courts declined to review McCarthy’s claims, prompting McCarthy to come to the Supreme Court last September. The justices considered McCarthy’s petition at three consecutive conferences before denying review without comment.
The justices once again did not act on the case of a website designer who wants to opt out of Colorado’s non-discrimination law and refuse to create custom sites for same-sex weddings. The justices have now considered 303 Creative v. Elenis at three consecutive conferences without acting on it.
The justices’ next regularly scheduled conference will take place on Friday, Feb. 18.
This post is also published on SCOTUSblog.