As the Supreme Court prepares to decide the fate of one of its most cited precedents, it will do so without a full slate of Justices. There’s a simple solution sitting in the current batch of petitions at the Court.

Earlier this year, the Supreme Court granted a petition for a writ of certiorari in Loper Bright Enterprises, Inc. v. Raimondo, which raises the question whether the Court should eliminate or at least clarify the contours of Chevrondeference. The Court’s decision to hear Loper Bright was surprising as everyone knew at the time that Justice Jackson could not participate in the case. (She is recused because she had been on the panel that heard oral argument in the case when it was at the D.C. Circuit.) 

One would think that would be reason enough to deny the cert petition as the Court would be short a Justice to decide an important issue—whether to overrule one of the most cited decisions in the Court’s history. The question presented was also likely to reappear at the Court with some frequency given how often lower courts continue to apply Chevron. (In fact, an amicus brief supporting the Loper Bright petition cited the frequency of Chevron’s application as a reason to grant the petition.) So the Court easily could have waited until another case came along presenting the same question without recusal issues.  

As it turns out, the Court did not have to wait very long. About a month after the Court granted the petition in Loper Bright, another petition was filed challenging the same federal agency’s interpretation of the same federal statute and expressly presenting the same question as in Loper Bright. The main difference is that the second petition, in Relentless, Inc. v. Department of Commerce, seeks review of a First Circuit decision, albeit one that reached the same result as the D.C. Circuit in Loper Bright. That minor difference between the two otherwise virtually identical cases is critical, however, because it means that Justice Jackson can participate in Relentless. 

Yesterday, John Elwood reported that the Court took the unusual step of rescheduling its consideration of the Relentless petition, moving it forward two weeks (from October 27 to October 13). Elwood speculated that the Court may have rescheduled the Relentless petition so that it could hear the case in addition to Loper Bright. 

But there is no reason why the Court should not just grant Relentless on the identical question presented in Loper Brightand dismiss Loper Bright as improvidently granted. Although briefs have been submitted in Loper Bright, the Court has not scheduled it for argument. And given that the first question presented in Relentless is identical to the question presented in Loper Bright, anyone who filed a brief in Loper Bright could likely just refile the same brief in Relentless(with a few minor modifications). It is also unlikely that the Justices have dived into Loper Bright’s extensive briefing just yet as it is still not scheduled for argument (and the Justices have had plenty of other cases to keep them busy). 

As Elwood notes, the Court could grant both cases and hear them side-by-side, but that would be unusual. The Court sometimes grants similar cases side-by-side when they raise similar questions but have different fact patterns or procedural postures (as the Court did in the affirmative action and student loan cases last year). Here, however, the cases are so similar that one could envision two opinions producing divergent (and possibly contradictory) results based on the different composition of Justices. 

The upshot is that Relentless is the better vehicle than Loper Bright and there seems little reason not to swap the two. Few Court resources will be wasted if the Court makes the switch, but the Court’s legitimacy will be enhanced if it decides such an important question with a full bench. 

Donald L. R. Goodson is a Senior Attorney at The Institute for Policy Integrity at New York University School of Law. This article does not purport to represent the views, if any, of New York University.