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The Supreme Court did something a little unusual on Friday, when it agreed to take up a case that presents the same issue that’s pending in another case already on the docket this term. Why did it do that?
The court didn’t explain why in its order, but we have a clue: Justice Ketanji Brown Jackson had recused herself from that first case, Loper Bright Enterprises v. Raimondo. So the full court can now participate in this new case, the epically titled Relentless v. Department of Commerce.
If Loper Bright sounds familiar, it was one of the biggest cases to watch heading into the new term, presenting the issue of whether to take down the long-standing Chevron precedent, under which courts defer to administrative agencies. It has been a target of business interests seeking to avoid regulations.
When the court agreed to review Loper Bright for this term, it didn’t say why Jackson wasn’t participating — sensing a theme here? — but we can presume it was because of her involvement in the case as it made its way through the U.S. Court of Appeals for the District of Columbia Circuit, where Jackson previously was a judge.
And there might be another reason Loper Bright sounds familiar. It was backed by the anti-regulatory Koch network, whose ties to Justice Clarence Thomas were the subject of recent ProPublica reporting. That led to calls for Thomas to recuse himself from Loper Bright, which he hasn’t done. As it happens, the Relentless case was also brought by a Koch-backed firm, so its becoming the lead case on the Chevron precedent this term doesn’t eliminate that issue. (Per the court’s Friday order, Relentless and Loper Bright will be argued in tandem during the January argument session.)
At any rate, when the court’s GOP supermajority chooses whether to keep the Chevron precedent, Jackson can participate at oral arguments and in the decision itself, even if she winds up dissenting.
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