The Supreme Court has added a second case asking it to overrule its landmark 1984 decision in Chevron v. Natural Resources Defense Council to its docket for the 2023-24 term. The announcement came on a list of orders released on Friday afternoon from the justices’ private conference earlier in the day. The court will hear oral argument in both Relentless v. Department of Commerce, the case granted on Friday, and Loper Bright Enterprises v. Raimondo, which it agreed in May to review, sometime in January. The remaining three cases granted on Friday will likely be argued later next year.
As John Elwood noted in his Relist Watch column on Wednesday, the Relentless case not only centers on the same question as Loper Bright – whether the court should overturn the Chevron doctrine, which instructs courts that they should defer to a federal agency’s interpretation of a statute as long as it is reasonable – but also arises from essentially the same set of facts – a challenge to a federal rule requiring fishing boats to pay for federal monitors. But unlike Loper Bright, Justice Ketanji Brown Jackson is not recused from the Relentless case, which would allow the full court to consider the Chevron question. Although the court might normally have simply put the case on hold until it ruled in the Loper Bright case, the court instead took the unusual step of fast-tracking the Relentless case for its consideration, suggesting that it might have other plans for the case. And at the same time, the Loper Bright case was conspicuously absent from the December argument calendar released on Thursday, even though the case will be fully briefed by the time the argument session begins.
In Nieves v. Bartlett, the Supreme Court held that when a plaintiff contends that he was arrested in retaliation for speech protected by the First Amendment, he must show that police did not have probable cause to arrest him. But the court carved out an exception to that rule for cases in which the plaintiff can show that he was arrested but others who had not been engaged in the same kind of protected speech had not been.
In Gonzalez v. Trevino, the justices agreed to decide what kinds of evidence will meet the exception outlined in Nieves. The question comes to the court in the case of Sylvia Gonzalez, who was elected to the city council in Castle Hill, Texas, after promising to dislodge the supposedly corrupt city manager through a petition. Shortly after she was elected, Gonzalez was charged with violating a Texas law that bars destroying or tampering with government documents when the petition – which she had presented to the city’s mayor – was discovered in a binder she had brought to a city council meeting.
Gonzalez contested the charge, arguing that although the police may have had probable cause to arrest her, the charge had been brought in retaliation for her decision to exercise her First Amendment right to freedom of speech and petition. But although she presented evidence that other indictments for violations of the Texas law under which she was charged involved forging government IDs or tampering with financial records, the U.S. Court of Appeals for the 5th Circuit ruled that the evidence was not enough to qualify for the Nieves exception. Instead, the court of appeals ruled, Gonzalez would have had to provide examples of people who “mishandled a government petition but were not prosecuted under” the Texas law. Gonzalez appealed to the Supreme Court, which agreed on Friday to hear her case.
The justices agreed to decide two other cases, both of which John Elwood covered in more detail in his Relist Watch column on Wednesday:
- Cantero v. Bank of America, involving whether federal banking laws trump state banking laws that attempt to set the terms on which federally chartered banks may offer mortgage escrow accounts authorized by federal law; and
- Truck Insurance Exchange v. Kaiser Gypsum, involving which entities can assert claims in bankruptcy court.
More orders from Friday’s conference are expected on Monday, Oct. 16, at 9:30 a.m.