RBG's Death Seen Triggering SCOTUS Shift on Administrative Law

Ginsburg wasn't a leading voice on administrative law but tended to support the point of view of Justices Elena Kagan and Stephen Breyer on defending the Chevron doctrine of court deference to an agency's interpretation of law and Auer doctrine of deference to agency regulations and not reviving the nondelegation doctrine, said American University administrative law professor Jeff Lubbers. "She was a key vote for that point of view." A conservative-leaning replacement would likely mean a majority vote the other way, he said. He said a SCOTUS majority is moving toward reviving the nondelegation doctrine, which would prohibit Congress from delegating its legislative power to administrative agencies, and Ginsburg's death further cements that position.

RBG's death ups the odds and speed of extreme deregulation by the court, New Street's Blair Levin wrote investors Monday. Government ability to put any kind of constraints on carriers would become "extremely constrained relative to today" due to SCOTUS likely preempting state and local regulation of interstate broadband service and reducing federal legislative power through its approach to Chevron and nondelegation, the analyst said.

Ginsburg was predictably a vote in favor of strong copyright and intellectual property protection, issues that don't typically break down along traditional political/conservative lines, said Santa Clara University School of Law copyright professor Tyler Ochoa. He said she was likely a vote in favor of Oracle in its suit on whether computer coding language is subject to copyright. Oral argument is set for next month (see 2007130056), and her death makes a majority favoring the Google position more likely, Ochoa said. A 4-4 affirmation of the appellate court ruling that copyright covers application programming interfaces would be a huge shift because the legal assumption for years has been that they aren't, Ochoa said.

IP lawyer Lee Gesmer of Gesmer Updegrove emailed that Ginsburg's death is potentially a lost vote for Oracle. That's judging by her position in Lotus v. Borland, a 1996 decision that copyright doesn't extend to a program's user interface.

Ginsburg had a nuanced view of fair use and a big track record of recognizing the importance of copyright authorship and the availability of fair use, all of which could play out in the Google case, said Jon Garon, Nova Southeastern University director-intellectual property, cybersecurity and technology law program. He said a bigger effect of her death could be on opinions rather than votes. Ginsburg often brought a lot of context on regulatory protections of individuals instead of a focus on structural regulation that comes with a federalist read of the law, he said: "That voice will be missed in how decisions are shaped."

Front-Runners

There are several potential replacements for the deceased justice.

During the confirmation hearing 11 months ago for her 11th U.S. Circuit Court of Appeals judgeship, Barbara Lagoa, a potential Ginsburg replacement, was asked numerous questions by the Senate Judiciary Committee and gave "pretty standard answers," such as deferring to SCOTUS precedent on Chevron deference, said Technology Policy Institute Senior Fellow Sarah Oh. Lagoa answered similarly about SCOTUS precedent on administrative law, according to a transcript. Oh said either Lagoa or 7th Circuit Judge Amy Coney Barrett seemingly could have an impact if there's a SCOTUS case about Commerce Clause questions or how to read Title I of the Communications Act.

Trump said he plans to announce his nominee Saturday. He's eyeing five potential candidates, though Barrett is considered the front-runner. Others on the shortlist include Lagoa, 6th Circuit Judge Joan Larsen and 4th Circuit Judge Allison Jones Rushing. Larsen was part of a three-judge 6th Circuit panel that in 2019 upheld a lower court’s ruling it lacked jurisdiction over Chinese defendant ZTE in a suit brought by NTCH-West Tenn (see 1901160040). Barrett, Lagoa and Rushing have made few or no major rulings on communications.

Chances of the Senate confirming Trump’s eventual pick to replace Ginsburg before the election went up Tuesday after Sen. Mitt Romney, R-Utah, announced he has no objection to doing the process before the contest. “If the nominee reaches the Senate floor, I intend to vote based upon their qualifications,” Romney said. Two other Senate Republicans -- Susan Collins of Maine and Lisa Murkowski of Alaska -- objected to a preelection confirmation. Republicans thought to be potential wild cards -- Cory Gardner of Colorado and Chuck Grassley of Iowa -- announced their support Monday. Fifty-one Senate Republicans will likely support an early vote.

Senate Minority Leader Chuck Schumer, D-N.Y., criticized Majority Leader Mitch McConnell, R-Ky., for pushing a preelection confirmation. “You would think that after the Republican majority led a historic blockade just four years ago to keep open a vacancy on the Supreme Court because it was an election year, they would have the honor and decency to apply their own rule when the same scenario came around again,” Schumer said. “You’d expect this Senate majority to follow their own rule."

American University's Lubbers said Barrett's views on statutory interpretation promoted textualism and were skeptical of using legislative history to interpret statutes. He said she might cut back on Chevron deference.

Ginsburg "understood and appreciated the importance of the copyright system to a vibrant culture [and] approached statutory interpretation with fidelity to legislative intent," emailed Peter Menell, Berkeley Center for Law & Technology co-director. Since Barrett and Lagoa haven't been on federal appeals courts long and aren't in IP-heavy circuits like the 2nd or 9th, they haven't seen many copyright cases, he said. "Judge Barrett appears to be in the Justice Scalia mold of strict textualism, which is in my view unfortunate in view of the need to deal with interpreting statutes in an ever-changing technological environment."