If you’ve been following the CAA news, you know that we are on the precipice of the U.S. Supreme Court making a decision as to whether it will take up the appeal in a case called 74 Pinehurst, LLC v. State of New York. This case, and it’s higher-profile companion, Community Housing Improvement Program v. City of New York (CHIP) have been heralded by many legal minds – myself included – as the best hope to reshape the judicial landscape for legal challenges to rent and eviction control laws. That’s why real estate, business, and private property rights groups from around the country – including CAA – have supported the cases with amicus briefs both in the lower courts and in the U.S. Supreme Court.
With the more conservative make-up of the court, it seemed like the odds were as good as they could be. After all, why wouldn’t the court want to take the opportunity to strike a blow to rent control – a policy that economists say, nearly unanimously, doesn’t work? The Wall Street Journal went so far as to run a piece with the headline Rent Control Is Constitutionally Vulnerable. But then in October, the high court unceremoniously declined to hear the CHIP case. While certainly disappointing, that wasn’t terribly surprising in and of itself. After all, the U.S. Supreme Court only takes about 1% of the cases presented to it.
What happened next, however, was curious. The court did not decline the 74 Pinehurst case, instead deferring a decision to its next conference, and then the next, and the next … and the next. The court has now “relisted” – the practice of reconsidering a case at successive conferences – the 74 Pinehurst case seven times. The court is due to take up the case for discussion for the eighth time at today’s conference (Dec. 1). So, what’s going on? Surely if the court keeps returning to the case, it must be interested, right?
Relists suggest that at least some justices want to take a closer look at a case, but it’s far from a guarantee that the case will be accepted for review. According to the statistical review done by SCOTUSblog, between 66% and 75% of all cases granted certiorari were relisted at least once. At face value, that would seem to give 74 Pinehurst a better-than-even chance of being accepted by the court. Unfortunately, that’s probably not the situation. The SCOTUSblog analysis also shows that as cases are relisted additional times, the odds of a grant of review fall. Multiple relists instead indicate that there’s something else going on, such as the court intending to enter a summary disposition – meaning it would issue an order to the lower court to reconsider some aspect of the case, but without allowing briefing or oral argument at the high court.
I don’t think that’s what is going to happen with 74 Pinehurst, though I hope I’m wrong. My prediction is that the court will ultimately deny review of 74 Pinehurst but that we will see one or more of the justices issue a concurring or dissenting statement. Admittedly, trying to predict what the U.S. Supreme Court will do is an exercise in reading tea leaves – but I’m not going purely on instinct here. That scenario – a case with multiple relists is declined, but with a dissenting or concurring statement – has played out following most of the court’s recent conferences. The Nov. 20 order list saw the case of E.I. du Pont de Nemours & Co. v. Travis Abbott, et ux. rejected after five relists with a dissenting opinion from Justice Thomas and an annotation that Justice Kavanaugh would have granted review. The Nov. 13 order list included a denial for the case of Michael Johnson v. Susan Prentice, et al., also after five relists, and a dissenting opinion from justices Jackson, Sotomayor, and Kagan. Before that, it was James King v. Douglas Brownback, et al., rejected on Oct. 30 after “only” three relists and with a statement from Justice Sotomayor.
While I would much prefer to see the court accept review of the 74 Pinehurst case, if my prediction proves correct, it may not be all bad. Typically, when the court rejects a case, it doesn’t give any indication as to why – meaning that it’s impossible to know what sort of case might have a better chance next time.
Because there will be a next time. There has to be.
What that next case might be remains to be seen. At CAA, we’re doing our part by tracking cases in the pipeline, supporting meritorious cases with amicus briefs, and even bringing our own lawsuits. Doing that, however, takes resources. We can’t win cases that aren’t brought or that don’t have sufficient financial backing to go all the way, and to do that we need your support. You can support our efforts by donating to the CAA Legal Fund.