Ketanji Brown Jackson

Supreme Court clears way for Trump administration to use modified voter verification database

The Supreme Court on Friday cleared the way for the Trump administration to move forward with its plan to use a modified centralized database to verify voters’ citizenship. In a seven-page opinion issued just 39 days before the Nov. 3, 2026, election, the justices paused a ruling by a federal judge in Washington, D.C., that had blocked the government from doing so on the ground that it violated (among other things) federal privacy laws. The unsigned opinion for the majority indicated that the lower court’s order “inhibits the Federal Government’s efforts to assist state and local agencies in the proper administration of the midterm elections.” In a dissenting opinion joined by Justices Sonia Sotomayor and Elena Kagan, Justice Ketanji Brown Jackson called Friday’s decision a “questionable interim ruling[] about two statutory provisions” that the Supreme Court “has never before interpreted.” She also contended that the majority “focuses only on the harms the Government will purportedly suffer absent a stay, disregarding the harms that the” use of the modified database “has caused, and will likely continue to cause, to lawful voters.” The dispute dates back to late March, when President Donald Trump issued an executive order that (among other things) directed the Department of Homeland Security and the Social Security Administration to set up systems that would permit state and local governments to verify voters’ citizenship and immigration status. Those agencies then modified the Department of Homeland Security’s Systematic Alien Verification for Entitlements database, known as the SAVE system, to include the records of U.S.-born citizens, to give it access to Social Security numbers, and to allow users to conduct multiple searches simultaneously. The League of Women Voters and the Electronic Privacy Information Center went to federal court in Washington, where they challenged the changes to the SAVE system. On June 22, U.S. District Judge Sparkle Sooknanan agreed with the challengers that the modified SAVE system violates federal privacy laws, the Social Security Act, and the federal laws governing administrative agencies, and she barred the government from using it. Sooknanan wrote that “the federal government has knowingly trampled on the privacy rights of American citizens in a manner that threatens the sacred right to vote.” Moreover, she continued, “states have partnered with the federal government to access the database and are actively removing United States citizens from voter rolls based on inaccurate information.” On Sept. 4, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit turned down the government’s request to pause Sooknanan’s order while its appeal moves forward, but the court fast-tracked the appeal, directing the litigants to quickly propose a briefing schedule. The litigants subsequently agreed to postpone any briefing in that court until the Supreme Court acts on the Trump administration’s emergency appeal. U.S. Solicitor General D. John Sauer went to the Supreme Court on Sept. 8, asking the justices to freeze Sooknanan’s ruling while the litigation continues. Sooknanan’s decision, he wrote, was an “indefensible order that threatens the integrity of upcoming elections by vacating the federal government’s authority to internally use Social Security data when fulfilling its duty to respond to requests by States to verify the citizenship of individuals for voting and other purposes.” Moreover, he argued, Sooknanan did not have the power to enter her order because the challengers do not have a legal right to sue, known as standing. Among other things, he contended, the federal government is not the source of any injury that the challengers and their members might suffer, because the SAVE system “merely notifies the States whether the federal government can confirm citizenship.” Lawyers for the League of Women Voters and the Electronic Privacy Information Center on Sept. 15 asked the justices to leave Sookanan’s ruling in place for now. Nikhel Sus, the lawyer representing the challengers, argued that “the government has recklessly created an error-laden master citizenship database that endangers millions of Americans’ privacy and voting rights.” The groups also insisted that, despite the government’s argument to the contrary, they have a legal right to sue. The Supreme Court’s own cases, Sus wrote, have “repeatedly recognized that a plaintiff has standing if ‘“third parties will likely react” to the government [action] “in predictable ways” that will likely cause . . . the plaintiff’s injury.’” Here, Sus continued, “‘additional voter verification and potential voter disenfranchisement is “the predictable effect of” the federal government incorrectly informing a state that an individual may be ineligible to vote.’ Indeed,” he observed, “the government concedes this is the intended effect.” And if the federal government were correct that a provision of federal immigration law supersedes any other federal law, like the Social Security Act or the Privacy Act, that might prevent DHS from obtaining or disclosing information, Sus wrote, it would mean that DHS would have “unlimited power to vacuum up millions of Americans’ sensitive information from SSA (or any other agency) and disclose it in bulk to states however it wants.” In its opinion on Friday morning, the majority agreed that the groups have standing to pursue their claim. One of the groups’ members is registered to vote in Louisiana, which uses the modified SAVE system, the opinion indicated; because Social Security records do not show that she is a naturalized citizen, she would have had to provide additional proof that she is a U.S. citizen, which is the kind of injury that gives her (and, as a result, the groups) a right to sue. However, the majority continued, the challengers are not likely to prevail on the merits of their claims – an important factor that courts consider in deciding whether to award temporary relief. The majority rejected the challengers’ contention that the use of the modified SAVE system violates the Social Security Act, the Privacy Act, and the federal law governing administrative agencies. It explained that in a federal immigration law enacted in 1996, “Congress … separately and expressly authorized DHS to request and receive information relating to citizenship and immigration status from other agencies, including SSA.” The Supreme Court has also “often granted” review (another factor in determining whether to award emergency relief), the majority wrote, “where a lower court has set aside an important federal program” – which, it appeared to suggest, the modified SAVE system is. Moreover, the majority added, the federal government will suffer permanent harm (yet another factor that courts consider) if the district court’s order remains in place. Under federal immigration law, the majority reasoned, “the Federal Government has an obligation to respond to requests from state and local election officials seeking to verify the citizenship of voters. The order below prevents the Federal Government from using the program it believes is best suited to the task.” The majority acknowledged that a different federal law, the National Voter Registration Act, bars state and local governments from systematically removing voters from their election rolls in the 90-day run-up to federal elections. “To be sure,” the majority wrote, “that moratorium limits the potential impact of staying” Sooknanan’s order. But if that order were to remain in place, the majority emphasized, state and local governments would still be barred from “conduct[ing] individualized inquiries, which are permitted under federal law during this period.” Jackson rejected the majority’s interpretation of federal immigration law as authorizing the changes to the SAVE system and “displac[ing] any other statutory restrictions on the disclosure of citizenship information.” Among other things, she wrote, the government has never relied on this interpretation before. In other recent cases, she said, the Supreme Court has required a “clear statement” – not found in the provision at issue here – from Congress giving an agency such a “transformative expansion in its regulatory authority.” Jackson conceded that the majority’s opinion “will likely have minimal short-term impact, as States will at most conduct individualized voter-roll maintenance using the modified SAVE system ahead of the November elections.” But, she continued, “the harm caused by burdening or disenfranchising even a few lawful voters outweighs the nonexistent harm that the Government experiences when it is prevented from taking an action that it likely lacks the authority to take.”

SCOTUSblog•Amy Howe7h ago

• neutral toward Tribunal Supremo · 98%

Ketanji Brown Jackson criticizes supreme court’s handling of emergency docket

The justice called out her colleagues in a speech she made at the UDC school of law, hours after Trump filed his latest request US supreme court justice Ketanji Brown Jackson acknowledged serious concerns about her colleagues’ handling of emergency requests, the method Donald Trump often uses to seek approval from the court. Jackson, one of the three liberal members of the supreme court, criticized the justices’ willingness to issue rulings via the “shadow docket”, saying it undermines the public’s faith in the judicial system. Continue reading...

The Guardian•Ariana Baio8h ago

• neutral toward Ketanji Brown Jackson · 97%

Justice Jackson Calls Emergency Docket ‘Potentially Corrosive’

Hours after fielding the Trump administration’s latest emergency application, Justice Ketanji Brown Jackson gave a speech urging the Supreme Court to rethink such requests.

The New York Times•Abbie VanSickle23h ago

• neutral toward Troy Jackson · 96%

Jackson warns Supreme Court’s emergency rulings imposing ‘institutional costs’

Justice Ketanji Brown Jackson implored her Supreme Court colleagues Thursday to dip into emergency docket cases less frequently, warning that it is imposing “institutional costs.”  “Why is it that one party should get a fast pass to the Supreme Court of the United States, when so many other parties are queued up, waiting patiently for…

The Hill•Zach Schonfeld23h ago

• neutral toward Troy Jackson · 72%

Trump administration again urges justices to allow deportations to third-party countries

Telling the justices that it had been deprived of “an essential tool to remove certain aliens, including some of the worst criminal aliens,” the Trump administration came to the Supreme Court on Thursday afternoon. Specifically, U.S. Solicitor General D. John Sauer asked the court to clear the way for the government to deport noncitizens to countries that are not identified in their removal orders – a procedure known as “third-country removals.” The 42-page filing was the third time that the Trump administration has asked the Supreme Court to intervene in the battle over third-country removals. Sauer told the justices on Thursday that “[t]he latest order” by U.S. District Judge Brian Murphy barring the third-country removals “rests on the same fundamentally flawed legal premises as the previous rulings.” Sauer also asked the court to enter an “immediate administrative stay” – an order that would allow the government to continue deportations while the justices consider his request. Justice Ketanji Brown Jackson, who has initial responsibility for emergency appeals from the U.S. Court of Appeals for the 1st Circuit, from which the case hails, directed the immigrants in the case to respond to the government’s request by 4 p.m. EDT on Monday, September 28. The dispute began last year, in the wake of a Jan. 20 executive order in which President Donald Trump instructed the Department of Homeland Security to take “all appropriate actions” to remove noncitizens who were in the United States despite having orders to deport them. That order prompted DHS to issue internal guidance in February instructing a division of U.S. Immigration and Customs Enforcement to determine whether undocumented immigrants who had received deportation orders but had not yet been removed because of the possibility that they would be tortured if they were returned to their home countries could instead be removed to a different country. Additional guidance issued the following month indicated that before immigrants can be removed to a country that is not specifically identified in their removal orders and that has not assured the United States that the immigrants will not face torture, DHS must follow a series of procedures: It must notify the immigrants of the planned removal, give them a chance to “affirmatively express” fear that they will face torture, and – if needed – conduct a screening to determine the likelihood that they will indeed be tortured. In March, four immigrants with removal orders went to federal court in Massachusetts, where they argued that they feared being removed to a country that was not identified in their orders. Murphy issued an order that barred the government from deporting the immigrants and others like them to third countries without first providing their lawyers and them with written notice of the third country to which they might be removed, as well as a “meaningful opportunity” to challenge that removal. DHS should also, Murphy instructed, decide whether the immigrants’ fears of torture were “reasonable,” rather than whether it is “more likely than not” that they will be tortured. If immigrants cannot make that showing, Murphy added, DHS must give them at least 15 days to seek to reopen their immigration proceedings. Sauer went to the Supreme Court for the first time , asking the justices to put Murphy’s order on hold while the government’s appeal moved forward. Over a dissent by Justice Sonia Sotomayor that was joined by Jackson and Justice Elena Kagan, the court on June 23 granted that request. Sauer returned to the court for the second time one day later , asking the justices to “clarify[]” that, in the wake of their first order, the Trump administration could move forward with the deportation of eight men being held on a U.S. military base in Djibouti after Murphy had ruled that efforts to remove them to South Sudan violated his order. On July 3, the court issued a brief opinion in which it indicated that its June 23 order paused Murphy’s order “in full” – and also applied to his later order regarding the South Sudan deportations. Kagan wrote a brief concurring opinion, in which she indicated that although she disagreed with the court’s decision to pause Murphy’s order, she did “not see how a district court can compel compliance with an order that this Court has stayed.” Sotomayor again dissented, joined by Jackson. When the case went back to the lower courts, Murphy issued a final judgment in the immigrants’ favor and threw out the third-country removal policy. He ruled (among other things) that before immigrants can be removed to a third country, they have the right to “meaningful notice” and a “meaningful opportunity” to contest removal to that third country on the ground that they have a reasonable fear of being persecuted or tortured there. On Friday, the U.S. Court of Appeals for the 1st Circuit largely upheld Murphy’s ruling, and on Wednesday it dissolved the March 16, 2026, order that put Murphy’s ruling on hold while the government appealed. The Trump administration then came to the Supreme Court for the third time on Thursday afternoon, asking the justices to intervene. Sauer wrote that the reinstatement of Murphy’s order has “created substantial logistical problems with ongoing removal operations—including the cancellation of flights—and led to added expense, potential diplomatic issues, and the inability to remove dangerous criminals.” Sauer contended that Murphy and the court of appeals had “simply relied on the same meritless grounds on which” the earlier order in the immigrants’ favor was based. “The courts,” he said, “again disregarded multiple jurisdictional bars that preclude” courts from reviewing an immigrant’s “claims of persecution or torture except in a petition for review from a removal order. And they again rejected the government’s reliance on countrywide assurances that particular nations will not torture or persecute anyone .” If the third-country deportation process is delayed, Sauer said, “the consequence … is that the government will often need to restart the entire removal process afresh, freezing things as the government attempts to rework arrangements with foreign countries.”

SCOTUSblog•Amy Howe24 Sept

• neutral toward Donald Trump · 94%

The court’s coming climate-change case and the very confused doctrine of preemption

On the first day of the October 2026 Term, the court will hear Suncorp Energy, Inc. v. County Commissioners of Boulder County , which poses the issue of whether suits under state law against energy companies for their role in causing climate change are preempted, or superseded, by federal law. Preemption issues constantly come to the Supreme Court. Yet it is difficult to find a pattern in the court’s handling of them. Some seem to be explainable on ideological grounds, but others don’t. For example, last term, the court decided two major preemption cases. The issue in Monsanto Co. v. Durnell was whether a federal statute, the Federal Insecticide, Fungicide, and Rodenticide Act , expressly preempts state tort liability based on a failure-to-warn theory. The Supreme Court, in a 7-2 decision with the majority opinion written by Justice Brett Kavanaugh, found that the federal statute expressly preempted such state tort liability. Justice Ketanji Brown Jackson dissented, joined by Justice Neil Gorsuch. In Watson v. Republican National Committee , the court ruled 5-4 that the federal law which specifies the date of the federal election does not preempt states from counting absentee ballots received within five days of the election. Justice Amy Coney Barrett wrote the opinion for the court and declared: “In sum, the election-day statutes require the electorate’s choice to be made on election day. That occurs so long as election day is the deadline for individuals to vote—as it is in Mississippi. But the election-day statutes do not set a deadline for ballot receipt, so they do not prevent Mississippi from counting ballots postmarked before election day yet received afterward.” Justice Samuel Alito wrote the dissenting opinion, joined by Justices Clarence Thomas, Gorsuch, and, in part, Kavanaugh, and would have found preemption. The law of preemption Article VI of the Constitution contains the supremacy clause, which provides that the Constitution, and laws and treaties made pursuant to it, is the supreme law of the land. In other words, if there is a conflict between federal and state law, the federal law controls and the state law is invalidated. As the Supreme Court has declared : “[U]nder the Supremacy Clause, from which our pre-emption doctrine is derived, ‘any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield.’” Traditionally, the Supreme Court has identified two major situations where preemption occurs. One is where a federal law expressly preempts state or local law. The other is where preemption is implied by a clear congressional intent to preempt state or local law. To make things even more complicated, there are three types of implied preemption: conflict preemption, where the federal and state laws are mutually exclusive; objectives (or obstacle) preemption, where the state or local law interferes with achieving a federal objective; and field preemption, where Congress has evidenced a clear intent to have federal law wholly “occupy” that “area of law.” Suncorp Energy, Inc. v. County Commissioners of Boulder County The plaintiffs, the county commissioners of Boulder County and the city of Boulder, sued Exxon Mobil Corporation and three Suncor Energy entities in Colorado state court, seeking damages for the role that the companies’ production, promotion, refining, marketing, and sale of fossil fuels allegedly played in exacerbating climate change and thereby harming Boulder’s property and residents. Boulder brought claims for public nuisance, private nuisance, trespass, unjust enrichment, and civil conspiracy, alleging that the companies knowingly contributed to climate change while misleading the public about the dangers of their products. Boulder further alleges that it has incurred and will incur millions of dollars in costs to protect against climate impacts such as wildfires, flooding, and drought. Boulder does not seek to enjoin any oil and gas operations or sales, and it does not seek to enforce emissions controls of any kind. The Colorado Supreme Court ruled that Boulder’s claims are not preempted by federal law and remanded the case, expressing no opinion on the ultimate viability of the merits. The court explained that the federal Clean Air Act contained no express preemption provision. Also, the state supreme court found that there was no field preemption because the act does not occupy the field of emissions regulation and, in fact, contains two savings clauses preserving stricter state standards and common-law rights. And, according to the Colorado Supreme Court, there was no conflict preemption because compliance with both the act and state tort law is possible and Boulder’s damages claims, which do not seek to regulate emissions, pose no obstacle to the act’s purposes. This is one of many civil cases that have been brought against major oil companies for their role in contributing to climate change. But it is the first to make it to the Supreme Court. Applying preemption doctrine As I read the briefs in Suncorp Energy, Inc. , I was trying to understand how it fit into the court’s framework for preemption cases. This is not an express preemption case; unlike Monsanto , there is no provision in the Clean Air Act or any other statute that explicitly preempts state regulation or state tort liability in this area. As to implied preemption, there is no conflict between federal law and state law; there is no reason that they could not be both followed. In fact, as the Colorado Supreme Court noted, the Clean Air Act has provisions that protect the continued authority of states to regulate to protect air quality. Nor is there any basis for concluding that Congress meant for there to be field preemption. One argument on the other side is that allowing states to regulate greenhouse gas emissions is inconsistent with the objectives of federal law. But as the county commissioners of Boulder County and the city of Boulder argue in their brief, the EPA recently has denied that it has the authority to regulate greenhouse gas emissions. As they say: There is no explanation “how the Court can hold that the Clean Air Act preempts claims indirectly relating to greenhouse-gas emissions when EPA maintains that the Act does not allow it to directly regulate some (perhaps any) greenhouse-gas emissions.” Thus, this is a preemption case that does not fit into the categories of preemption which the court long has articulated. The energy companies nevertheless make three primary arguments for finding preemption. First, they argue that the Constitution denies to the states the ability to regulate pollution because of its interstate nature. They write : “[T]he structure of our constitutional system continues to foreclose resort to state law unless Congress affirmatively authorizes its application. States have no residual or inherent power under our Constitution to regulate in this area, and no federal law authorizes state common-law claims for harms caused by diffuse interstate and international emissions.” This is a stunning claim given that the 10th Amendment always has been understood to allow states to do anything that is not forbidden by the Constitution. If the court accepts this argument, the implications could be enormous in denying states the ability to regulate activity with interstate effects. This conceivably could be taken to preempt any state environmental laws. The energy companies point to Supreme Court cases creating federal common law in this area and say that the “Court has long held that interstate pollution is an inherently federal area in which state law cannot govern.” But the fact that federal law, even federal common law, exists doesn’t answer the question of whether there is preemption of state law. Second, the energy companies argue that the Clean Air Act preempts state tort liability. They say that since the Constitution preempts state regulation, the Clean Air Act would need to expressly authorize it. The energy companies write: “If state law could not be applied before the enactment of the Clean Air Act, it thus follows that state law remains inapplicable unless the Clean Air Act affirmatively authorizes it. Both before and after the Clean Air Act’s enactment, the Constitution rendered state law inapplicable to interstate air-pollution disputes.” This argument seeks to shift the presumption which is usually against presumption in favor of it. The argument seems to be that states can regulate, but only with express permission from Congress. Finally, the energy companies argue that inevitably there would be foreign policy effects to allowing state tort liability and it therefore should be deemed preempted on that basis. They write: The other sides’ “claims fail for the additional reason that, by seeking redress for the effects of international emissions, they infringe on the federal government’s exclusive authority over foreign affairs.” This is an unusual, though not unheard of, form of preemption: implied dormant foreign affairs preemption. In Crosby v. National Foreign Trade Council , the court considered a Massachusetts law that prohibited the state and its agencies from purchasing goods or services from companies that do business with Burma (Myanmar). The state adopted this law because of human rights violations in that nation. The Supreme Court unanimously found that the state law was preempted by federal law. Justice David Souter, writing for the court, explained that Congress had enacted a sanctions law against Burma. He found that this preempted states from imposing their own sanctions. The court also found preemption because of potential foreign policy issues in American Insurance Assn. v. Garamendi . California’s Holocaust Victim Insurance Relief Act required any insurer that did business in California and that sold insurance policies in Europe that were in effect between 1920 and 1945 to disclose certain information about those policies to the state insurance commissioner or risk losing its license. The state was concerned that insurance companies were “stone-walling” and refusing to disclose information about their Holocaust-era policies. The law applied only to insurance companies doing business in California and only required disclosure of information. Nonetheless, in a 5-to-4 decision, the court found the California law preempted based on the implied dormant foreign affairs power of the president. But accepting such preemption in Suncor would be a substantial expansion of this doctrine. For example, if the court accepts the argument here, would that limit states creating tort liability whenever there are international consequences, including simply the presence of a multinational corporation? Conclusion Although the court deals with preemption cases every term, Suncorp Energy, Inc. v. County Commissioners of Boulder County is quite different because it does not fit into the usual categories of preemption and because it involves unusual claims of preemption based on the Constitution and foreign policy. And to make matters even more fraught, it arises in the context of climate change – which poses an existential threat to the planet – but at a moment when it is an issue that has become intensely political.

SCOTUSblog•Erwin Chemerinsky22 Sept

Court grants request from Republican groups to pause ruling, for now, on political broadcasting rates

The Supreme Court on Friday cleared the way for political parties and joint fundraising committees, at least for now, to receive favorable advertising rates in the upcoming midterm elections. In a four-page, unsigned opinion , the justices temporarily paused a ruling by a federal appeals court in Richmond, Virginia, that limited the favorable rates to candidates for federal office. Justice Ketanji Brown Jackson was the lone dissenter. She would have turned down the request by the National Republican Senatorial Committee and the National Republican Congressional Committee to freeze the ruling by the U.S. Court of Appeals for the 4th Circuit. The dispute began this spring. Under federal election law , candidates for federal office can purchase advertising time at preferential rates during the run-up to elections: 45 days before the primary election and 60 days before the general. On March 30, the Federal Communications Commission’s Media Bureau issued a “public notice” indicating that political parties and joint fundraising committees would also be entitled to the more favorable rates. Sen. Jon Ossoff of Georgia and three other Democrats who are candidates for the House or Senate went to the full FCC on April 29, asking it to review the public notice. Approximately six weeks later, before the agency had acted on their application for review, they went to federal court, where they argued that the public notice was inconsistent with federal election laws. A divided panel of the 4th Circuit agreed . Writing for the majority, Judge Robert King held that federal law is “unambiguous”: it gives the preferential rates only to a “candidate” for his or her personal use, which does not extend to a candidate’s “mere authorization of someone else’s use.” Judge J. Harvie Wilkinson dissented. In his view, it was too soon for the court of appeals to weigh in, because the FCC was still deliberating. And in his view, the text of the law is ambiguous: it can “accommodate[], and may indeed favor, the FCC’s view.” Moreover, he added, the court’s decision “restrict[s] political speech in the sensitive period leading up to an election.” The NRSC and the NRCC, which had joined the case, came to the Supreme Court late last month, asking the justices to step in. Like Wilkinson, they argued that the court of appeals did not have the power to consider the candidates’ challenge in the first place because the public notice was merely a “staff-level” document “that is neither final nor an agency action” – an important distinction because the court only has the power to review “final orders of the Federal Communications Commission.” Instead, they contended, the notice “is at most an interpretive guidance document restating the FCC’s longstanding position regarding” the preferential rates. The 4th Circuit’s decision was also wrong on the merits, the committees continued. Whether an entity is entitled to a preferential rate hinges on whether a candidate or “any authorized committee of the candidate” uses a broadcasting station before the election; who pays for the advertisements is irrelevant, they argued. “Indeed,” they suggested, “a candidate might ‘use’ a broadcasting station by appearing in an advertisement authorized by the candidate.” The Trump administration filed a brief supporting the Republican groups in which it contended (among other things) that the challengers lacked a legal right to sue, known as standing. The public notice, U.S. Solicitor General D. John Sauer argued, “does not grant favored treatment to one side or the other; instead, the notice’s interpretation offers the same benefit to all sides, including the challengers themselves and the committees and parties supporting them.” Ossoff and the other candidates on Thursday urged the justices to leave the 4th Circuit’s ruling in place. They emphasized that “[n]o court has ever held, or even hinted,” that the preferential rates should be available to anyone other than the candidates themselves. And until it issued the guidance at the center of this case, the challengers added, the FCC itself “had long agreed that ‘ only candidates are entitled to’” the more favorable rates. The candidates also contended that they have standing because of the negative effect that a ruling for the committees would have on them. They noted that “the Candidates’ rival party committees have promised that if the Public Notice stands, they will spend hundreds of millions of dollars ‘at the candidate rate’ to ‘obliterate’ Democratic candidates like” the challengers in this case, “characterizing it as ‘a complete game changer.’” The candidates also resisted any suggestion that they had asked the court of appeals to weigh in too soon. Federal law, they said, specifically envisions that federal courts of appeals can review agency actions like the public notice as long as the challenger has filed an application asking the FCC to review the action – precisely what the candidates have done here. On Friday afternoon, the Supreme Court granted the committees’ request and put the 4th Circuit’s decision on hold to give the committees time to seek Supreme Court review. The committees were likely to prevail on their argument that the 4th Circuit did not have the power to review the public notice before the FCC had acted on the candidates’ petition for review, the Supreme Court emphasized. “The Communications Act … contemplates that an aggrieved party will file an application for review with the Commission, that the Commission will resolve that application by order, and that public notice of that order will issue before an aggrieved party may petition for further review in federal court. Because the candidates’ application for review was pending when they filed their petition for review,” the court explained, “the Fourth Circuit likely lacked statutory jurisdiction to address their challenge.” The committees will also suffer permanent harm – another important factor in considering whether to award temporary relief – if the 4th Circuit’s decision remains in place, the Supreme Court said. The committees have indicated that, based on that ruling, “broadcasters are already rescinding favorable rates,” which “will require the party committees to pay more for advertising space, thereby hampering their efforts to reach the electorate in the critical weeks leading up to the midterms. That injury, which implicates their First Amendment rights to speak and coordinate their political activities freely, cannot be remedied after the fact through refunds or reimbursements.” Jackson penned a one-paragraph dissent. In her view, the committees “are not likely to succeed on the merits of their argument that the Fourth Circuit lacked” the power to consider the candidates’ case. She pointed to cases (including the proceedings in the 4th Circuit in this case) standing for the ideas that an agency cannot ward off review of its conduct by a court by failing to act and that the failure to comply with requirements outlined in a statute does not strip a court of the authority to hear a case.

SCOTUSblog•Amy Howe4 Sept