APPELLATE NEWS AND NOTES

(Posted May 3, 2023) Here are a few tidbits that should get you through until tomorrow, when I hope to receive one or more love letters from Ninth and Franklin.

SCOTUS to reevaluate Chevron

Those Other Robes have granted cert in a case that may spell the end of a roughly 40-year-old doctrine known as Chevron deference. In the 1980s, the Supreme Court ruled that courts should defer to regulatory agencies’ interpretation of ambiguous statutes. That earlier Court noted that regulators have subject-matter expertise that judges, as legal generalists, do not, so better-informed opinions ought to prevail unless they’re unreasonable.

I’m not an admin-law geek, so mine may be one of the opinions that you should discount. But I’ve always been a bit leery of Chevron deference, because it looks to me like an abdication of the courts’ ultimate duty to “say what the law is,” to borrow a phrase from a famous Virginian. Resolving statutory ambiguities is a key part of every jurist’s job description; courts have tools (rules of statutory construction) to deal with those problems.

The new cert grant will be an exercise in delayed gratification for courtwatchers. Sittings for OT’22 are complete, so this new case – Loper Bright Enterprises v. Raimondo – will go on the argument document for the term that begins next October. That portends a ruling on the merits in the first half of 2024.

Glacial writ grants

My loyal readers know well that I’ve been following the slow pace of appeals awarded lately by the Supreme Court of Virginia. Part of the explanation – but only part! – is the recent creation of a universal appeal of right in the Court of Appeals of Virginia. That has interrupted the flow of incoming business in the Supreme Court.

In a January 25 post, I reported on the October and December writ panels, which generated only a handful of writs. I can now report that the February 14 panels awarded five appeals, while the April 4 panels appear to have granted only one petition for appeal out of the 36 on that docket, a grant rate of about 3%.

This means that one-third of the Supreme Court’s 2023 writ panels are in the books, and we have six writs to show for it. I still hold out hope that the pace will accelerate a bit in the second half of the year, but for now, that’s wishful thinking. We’re on pace for roughly 20 writ grants in calendar 2023. I’ve been following the court long enough to remember well when a single session featured 30 or more granted cases.

The other shoe drops in Raleigh

On March 9, I metaphorically crossed the Commonwealth’s southern border to report on developments in the North Carolina Supreme Court. In 2022, the court ruled by a 4-3 margin that the state’s legislative maps were improperly politically gerrymandered to favor Republicans. Those older maps allowed the GOP to win ten of the state’s 14 Congressional races, despite an almost even split in the statewide vote.

Last November, Republicans captured a 5-2 majority of the court in the general election. Shortly after the new justices were sworn in this past January, the losing litigants in the previous year’s appeal sought rehearing; by a 5-2 vote, the new court granted it. That strongly suggested a different outcome in the case, a change engendered solely by the electoral result.

Last week, the court issued an opinion holding that gerrymandering is exclusively a legislative function that’s beyond the reach of the courts. The vote was – no surprise here – 5-2, with all Republican jurists voting with the majority. The two dissenting Democratic justices issued a scathing dissent that concluded with a prediction that the majority holding won’t last forever.

I’ll repeat my conclusion from the March essay: This is a good reason to celebrate that we here in the Commonwealth don’t select our judges by popular election. These proceedings in the Tar Heel State fuel the firestorm of complaints about the politicization of the judiciary, a phenomenon that extends well beyond North Carolina’s borders.