Divided court denies review in “net neutrality” cases

This morning the Supreme Court issued orders from the justices’ private conference on Friday. The justices did not add any new cases to their docket for the term – they did that on Friday afternoon – nor did they call for the views of the U.S. solicitor general in any cases. But one order today in particular was significant: The justices declined to review a decision by the U.S. Court of Appeals for the District of Columbia Circuit upholding the Obama administration’s “net neutrality” rules, which (generally speaking) required internet service providers to treat all traffic on the internet equally.

The rules, which were issued in 2015, have since been replaced by a 2018 order by the Federal Communications Commission eliminating net neutrality, so the justices were not expected to weigh in on the merits of these cases. Instead, the real question was the fate of the D.C. Circuit’s decision upholding the rules: Would the Supreme Court allow it to stand – which would mean that it could serve as precedent for future cases – or would the justices instead invalidate the D.C. Circuit’s decision and send it back with directions to dismiss the cases as moot (a doctrine known as Munsingwear vacatur), because the net neutrality rules are no longer in effect?

Today, over a year after the petitions seeking review of the D.C. Circuit’s decision were filed, a divided Supreme Court simply declined to consider the cases, leaving the D.C. Circuit’s decision in place. The court’s newest justice, Brett Kavanaugh, was expected to recuse himself from voting on the petitions because he had participated in the cases while on the D.C. Circuit, and he did. But Chief Justice John Roberts also recused himself – presumably (although there is no way to know for sure) because he owns stock in one of the companies challenging the rules.

With Roberts and Kavanaugh both recused, that left only seven justices. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated that they would have opted for Munsingwear vacatur, which would have left the D.C. Circuit’s ruling without any precedential value. But they would have needed more votes for that result, which they were apparently not able to get with Roberts and Kavanaugh recused.

The justices did not act on several petitions that they have now repeatedly considered at their private conferences, including a challenge to mandatory bar dues, a case involving whether individuals can bring lawsuits to challenge a state’s disqualification of a Medicaid provider, and the case of a high-school football coach who contends that his First Amendment rights were violated when he was fired for praying on the field after a game.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in these cases. However, I am not affiliated with the firm.]