The FCC Goes to the USSC


The FCC has filed a writ of certiorari with the U.S. Supreme Court appealing the Second Circuit ruling (which I blogged about here) striking down the Commission's eminently crappy "fleeting expletives" policy. SCOTUSblog has a lengthy discussion here with many an excerpt from the government's petition.

Here are a few reasons why this isn't very exciting.

First, the Second Circuit gave the FCC an opportunity to explain itself and save its policy rather than striking down the policy all together. The FCC didn't do this, and instead went straight to the Supreme Court. The government had its reasons for this approach, but given the Roberts Court's distaste for actually hearing and deciding cases, this little procedural foible will give the Court all the reason it needs to deny cert.

Second, the precise issue presented in the cert petition is one of statutory interpretation rather than constitutionality. So, even if the Court does decide to take the case, the Court is unlikely to get into the constitutionality of the FCC's indecency jurisdiction given the Roberts Court's penchant for deciding cases on narrow, boring, and unhelpful grounds. The Second Circuit opinion had a lot of dicta about the constitutionality of the FCC's indecency regime but ultimately decided the case on statutory interpretation.

Finally, one of the most glaring themes that has come out of the Roberts Court over the past two years has been "Hooray for the government," so if the Court reaches the merits of the case the FCC is likely to come out on top. And that's Bad for America, my friends.

So, I'll be keeping an eye on this as it develops but I'm not getting my hopes up.


At the risk of sounding ignorant, how does the SC decide which cases to hear/not to hear? Do they have a big slumber party and pick names out of a hat? How does this work?

I think the rule is that it takes four Justices to grant cert, and they decide (except for Justice Stevens) based on memos generated by clerks in the "cert pool," a division of labor among the clerks to facilitate the cert review process. They have conferences and vote on cert petitions just like they vote when they decide cases. Justice Stevens is the only one who actually reviews every single cert petition, or at least has his clerks review every one.

I could be wrong about any or all of that.

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This page contains a single entry by hb published on November 5, 2007 7:37 AM.

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