Supreme Court Signals Interest in Major Economic Liberty Case

The U.S. Supreme Court will meet on Friday in private conference
to consider the current crop of petitioners seeking review of their
respective cases. Originally, that batch of petitions was scheduled
to include Courtney v. Danner, an appeal stemming from a
terrible opinion by the U.S. Court of Appeals for the 9th Circuit
upholding a monopolistic law in Washington state. But then
something very interesting happened. Yeserday, the Supreme Court

requested a response from the victorious Washington agency
explaining why its lower-court win should be allowed to stand.
That’s notable because the agency initially waved its right to file
such a response. Someone on the Supreme Court apparently thinks
this case deserves more attention.

What’s so special about the case? Courtney v. Danner
asks whether the Privileges or Immunities Clause of the 14th
Amendment provides any meaningful protection for economic liberty
from overreaching state officials. The 9th Circuit effectively held
that it does not. But that ruling by the 9th Circuit
is wrong about both the original meaning of the 14th Amendment
and about the correct application of the Supreme Court’s 1873
precedent in The Slaughter-House Cases. The state agency
now has until April 25 to deliver its response.

To be sure, none of this guarantees the Supreme Court will take
the case; but it does suggest the 9th Circuit’s dubious conclusions
have raised a few red flags. That’s a good start.