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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
It’s been two weeks since our last installment without any new grants. The Supreme Court cleared out some old relists in the last few order lists. The court denied review in Smith v. Stillie, the case challenging Alaska’s disclosure requirement statute for political contributions. The court also denied review of two cases challenging New York City’s rent-regulation laws, with Justice Neil Gorsuch noting that he would have granted the petitions.
It’s good the court has cleared out a bit, because there are eight new relists this week addressing three basic subjects. If any of the issues is granted, it would be a noteworthy addition to a fairly humdrum docket. If all are added, it will make the term significantly more interesting.
Nondelegation & private nondelegation
Four of the new relists concern a cluster of issues surrounding the federal “E-rate program,” which subsidizes phone and internet service for rural areas, low-income families in cities, public schools, and libraries. Under the program, telecommunications providers are required to contribute to a nonprofit corporation, the Universal Service Administration Company, which manages what’s known as the Universal Service Fund to finance those subsidies. Congress created the E-rate program and authorized the Federal Communications Commission to establish and oversee the corporation. The Universal Service Administration Company, though formally independent, is as a practical matter controlled by the FCC. The agency chooses the company’s board of directors, allocates its budget, and the company is required to act in compliance with FCC rules.
Consumers’ Research is an advocacy group that targets companies that, in its view, engage in “woke politics.” The group, funded in part by Leonard Leo’s Marble Freedom Trust, runs attack ads (like this “Woka-Cola” ad) and has spent millions of dollars campaigning to block the consideration of climate change, or ESG, in Wall Street investing. Another major target is the FCC.
The group filed a series of challenges in federal courts around the country challenging the constitutionality of the program. First, it argued that Congress had improperly delegated legislative authority to the FCC, including effectively giving Congress’s taxing power to the FCC by allowing it to set the fees that telecommunications providers must pay to the fund. This, it argued, violates the nondelegation doctrine, which prohibits Congress from delegating its power to legislate to other branches of government.
Second, the group maintained that the FCC had in turn improperly delegated too much authority to the corporation, including by allowing the company to basically determine the amount of the fee. That, the group argued, violates the private nondelegation doctrine, the principle that the government cannot delegate its powers to private entities.
In a series of decisions last year, three-judge panels of the U.S. Courts of Appeals for the 5th, 6th, and 11th Circuits rejected the group’s arguments. The full 5th Circuit then agreed to rehear the case. Before it could decide the case, the Supreme Court denied the group’s petitions seeking review of the 6th and 11th Circuit decisions.
But then, the full 5th Circuit ruled for Consumers’ Research, holding that “Congress’s sweeping delegation to FCC and FCC’s unauthorized subdelegation to” the nonprofit violates the Constitution.
In Federal Communications Commission v. Consumers’ Research, the agency asks the court to reverse the 5th Circuit’s ruling. The FCC argues that Congress did not improperly delegate legislative power because it established a number of “intelligible principles” directing the agency how to act, which is all the current nondelegation doctrine requires.
The FCC also argues that the private company scheme is permissible because the company exercises only administrative authority over the fund, not any policymaking power to set fees or subsidy rates, and in any event is closely supervised by the agency. In Schools, Health & Libraries Broadband Coalition v. Consumers’ Research, a group of trade associations representing entities that receive E-rate funding likewise asks for review.
Consumers’ Research agrees that the Supreme Court should take up the question, arguing that the 5th Circuit’s decision is correct and that the program is unconstitutional. But in a pair of cases identically captioned Consumers’ Research v. Federal Communications Commission, it urges the justices to grant rehearing of its petitions seeking review of the 6th and 11th Circuit rulings and decide the issue either in those cases alone or consolidated with the government’s petition.
This issue strikes me as a likely grant, with the FCC and SHLB cases as the most likely vehicles, because the court rarely grants rehearing petitions, even if it winds up granting plenary review of a related petition. (For example, United States Army Corps of Engineers v. Hawkes Co. and Kent Recycling Services, LLC v. United States Army Corps of Engineers, presented the same situation in late 2015.)
Protesters outside abortion clinics
In Hill v. Colorado, the Supreme Court upheld a Colorado law enacted to prevent groups or individuals who oppose abortion from protesting, handing out materials, or speaking to patients, doctors, or staff outside medical facilities that offer the procedure. The law created eight-foot buffer zones that surrounded people going into or out of abortion clinics. The challengers argued that the buffer zones made it impossible to communicate with those people – and specifically to make eye contact while they made their case. The dissenters included Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy — who was then in the majority more than any other justice.
As a former clerk to Kennedy, I had the sense at the time that Hill was in tension with the prevailing pro-speech attitudes of the Supreme Court and might be overturned – a conviction that has only grown with successive conservative appointments. and That feeling was reinforced two years ago, when, as the court overruled the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito wrote in his majority opinion that Hill has “distorted First Amendment doctrines.”
Abortion opponents have brought the question to the court in challenges to two cities’ restrictions on protesting outside of clinics and hospitals. In response to disruptive protests around an abortion clinic, the city of Englewood, New Jersey, passed an ordinance in 2014 that bars expressive activity of any sort in an eight-foot buffer zone outside entrances or driveways of all health care facilities.
In 2022, the city of Carbondale, Illinois, adopted its own ordinance, which likewise employed an eight-foot buffer zone. But under Carbondale’s regulation, the buffer zones surround people rather than clinic entrances, barring activists from being closer than eight feet from anyone entering or leaving a medical facility within 100 feet of the building. Carbondale’s city council enacted its ordinance in response to Dobbs, and their law was closely modeled on the Colorado law upheld in Hill — as the city council made clear at the time of its enactment.
Plaintiffs brought challenges to both laws, but federal district courts rejected them. And the U.S. Courts of Appeals for the 3rd and 7th Circuits affirmed those rulings. In Turco v. City of Englewood, New Jersey, and Coalition Life v. City of Carbondale, Illinois, Turco and Coalition Life ask the justices to overrule Hill. They argue that subsequent decisions have undermined the decision in Hill – leaving it, as Thomas argued, “all but interred,” “defunct,” and “an aberration.” They point to a 2014 decision striking down a Massachusetts law that created 35-foot buffer zones outside medical facilities. The challengers argue that the time has come to overrule Hill and make clear that ordinances like the ones the cities adopted are unduly restrictive of speech.
Transgender athletes in students’ sports
As if the other cases we’ve been discussing aren’t hot button enough, the third group of cases concern a major cultural issue of the moment, transgender athletes’ participation in sports. Half of all states have adopted laws prohibiting transgender athletes from competing with others who are not the same sex assigned at birth.
Idaho enacted the “Fairness in Women’s Sports Act,” which categorically banned transgender women and girls from women’s student athletics at all educational levels out of a stated concern for fairness arising from “average real differences” between the physical capabilities of the sexes. The law provided for a procedure allowing anyone to dispute the sex of anyone competing as a female student athlete and requiring that athlete to undergo medical procedures to verify their sex. (Male student athletes are not subject to a similar process.)
Lindsay Hecox, a transgender athlete who wanted to try out for the Boise State University women’s track team, brought suit to challenge the law. An Idaho federal district court temporarily blocked the state from enforcing the law, holding that it likely violated the equal protection clause of the 14th Amendment.
The U.S. Court of Appeals for the 9th Circuit affirmed the injunction in part, holding that the law likely violated the equal protection clause because it only provided intrusive verification procedures for women. But the court of appeals vacated the injunction as it applied to anyone other than the parties to the case.
In Little v. Hecox, Idaho — supported by 15 amicus briefs — urges the Supreme Court to take up the case and reverse the injunction as to Hecox.
Similarly, West Virginia adopted a law providing that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport,” and the act defined sex based on “biological sex determined at birth.” Like Idaho’s law, it too was motivated by concerns about “inherent physical differences between biological males and biological females” and their effects on competition.
B.P.J. is a 14-year-old transgender teen who has publicly identified as a girl since third grade. She has been taking puberty blockers to avoid the onset of male characteristics and also began receiving hormone therapy with estrogen. In 2021, when she was a rising sixth grader, B.P.J. wanted to try out for the middle-school cross-country team, but the school’s principal told her that she would not be allowed to do so.
Heather Jackson, B.P.J.’s mother, sued West Virginia on her behalf. A district court granted a preliminary injunction, concluding that B.P.J. had shown “a likelihood of success” in demonstrating that the statute was “unconstitutional as it applied to her and that it violated Title IX” of the Education Amendments Act of 1972, which prohibits sex discrimination at schools that receive federal funding.
A divided panel of the U.S. Court of Appeals for the 4th Circuit affirmed. The majority held that the law was unconstitutional as applied to B.P.J. It held that the state had not justified the restriction because B.P.J. had been taking puberty blockers for years; therefore, her case did not implicate the performance advantages that motivated the law. For similar reasons, the majority held that B.P.J. was likely to establish a Title IX violation. Judge G. Steven Agee dissented, concluding that “West Virginia may separate its sports teams by biological sex without running afoul of either the Equal Protection Clause or Title IX.”
In West Virginia v. B.P.J., by her next friend and mother, Heather Jackson, the state — supported by 19 amicus briefs — urges the Supreme Court to grant review and reverse.
We should know more soon. Tune in next time!
New Relists
Consumers’ Research v. Federal Communications Commission, 23-456
Issues: (1) Whether 47 U.S.C. § 254 violates the nondelegation doctrine by imposing no limit on the Federal Communications Commission’s power to raise revenue for the Universal Service Fund; and (2) whether the FCC violated the private nondelegation doctrine by transferring its revenue-raising power to a private company run by industry interest groups.
(Relisted after the Nov. 15 conference.)
Consumers’ Research v. Federal Communications Commission, 23-743
Issues: (1) Whether 47 U.S.C. § 254 violates the nondelegation doctrine by imposing no limit on the Federal Communications Commission’s power to raise revenue for the Universal Service Fund; and (2) whether the FCC violated the private nondelegation doctrine by transferring its revenue-raising power to a private company run by industry interest groups.
(Relisted after the Nov. 15 conference.)
Turco v. City of Englewood, New Jersey, 23-1189
Issues: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the court should overrule Hill v. Colorado.
(Relisted after the Nov. 15 conference.)
Little v. Hecox, 24-38
Issue: Whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the equal protection clause of the 14th Amendment.
(Relisted after the Nov. 15 conference.)
West Virginia v. B.P.J., by her next friend and mother, Heather Jackson, 24-43
Issues: (1) Whether Title IX of the Education Amendments of 1972 prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth; and (2) whether the equal protection clause of the 14th Amendment prevents a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth.
(Relisted after the Nov. 15 conference.)
Coalition Life v. City of Carbondale, Illinois, 24-57
Issue: Whether this Court should overrule Hill v. Colorado.
(Relisted after the Nov. 15 conference.)
Schools, Health & Libraries Broadband Coalition v. Consumers’ Research, 24-422
Issues: (1) Whether Congress violated the nondelegation doctrine by authorizing the Federal Communications Commission to determine, within the limits set forth in 47 U.S.C. § 254, the amount that providers must contribute to the Universal Service Fund; (2) whether the FCC violated the nondelegation doctrine by using the financial projections of the private company appointed as the fund’s administrator in computing universal service contribution rates; and (3) whether the combination of Congress’s conferral of authority on the FCC and the FCC’s delegation of administrative responsibilities to the administrator violates the nondelegation doctrine.
(Relisted after the Nov. 15 conference.)
Federal Communications Commission v. Consumers’ Research, 24-354
Issues: (1) Whether Congress violated the nondelegation doctrine by authorizing the Federal Communications Commission to determine, within the limits set forth in 47 U.S.C. § 254, the amount that providers must contribute to the Universal Service Fund; (2) whether the FCC violated the nondelegation doctrine by using the financial projections of the private company appointed as the fund’s administrator in computing universal service contribution rates; and (3) whether the combination of Congress’s conferral of authority on the FCC and the FCC’s delegation of administrative responsibilities to the administrator violates the nondelegation doctrine.
(Relisted after the Nov. 15 conference.)
Returning Relists
Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, 23-1137
Issue: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences.)
Andrew v. White, 23-6573
Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences.)
Kerr v. Planned Parenthood South Atlantic, 23-1275
Issues: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences.)
Wilson v. Hawaii, 23-7517
Issue: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences.)
Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7
Issues: (1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences.)
Ohio v. Environmental Protection Agency, 24-13
Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8 and Nov. 15 conferences.)
Parents Protecting Our Children, UA v. Eau Claire Area School District, 23-1280
Issue: Whether, when a school district adopts an explicit policy to usurp parental decision-making authority over a major health-related decision — and to conceal this from the parents — parents who are subject to such a policy have standing to challenge it.
(Relisted after the Nov. 1, Nov. 8 and Nov. 15 conferences.)
Baker v. City of McKinney, Texas, 23-1363
Issue: Whether the takings clause of the Fifth Amendment applies even when the government takes property for a particularly compelling public use.
(Relisted after the Nov. 1, Nov. 8 and Nov. 15 conferences.)
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