6 ms·

More details here: https://arstechnica.com/tech-policy/2018/11/supreme-court-wont-rule-on-legality-of-obama-era-net-neutrality-rules/ https://arstechnica.com/te

More details here: https://arstechnica.com/tech-policy/2018/11/supreme-court-wont-rule-on-legality-of-obama-era-net-neutrality-rules/ https://arstechnica.com/tech-policy/2018/11/supreme-court-wo... I'd like to point out that this is may only be temporary victory. Roberts and Kavanaugh recused themselves, and they both would have voted in favor of the challenge if they had voted. If at any point in the future the issue is retried and the two justices don't recuse themselves, a majority of the SCOTUS would side with the Telecoms.

sctb 8y ago
Thanks, we've updated the link from https://www.theregister.co.uk/2018/11/05/supreme_court_neutrality/ https://www.theregister.co.uk/2018/11/05/supreme_court_neutr....
jagger27 8y ago
Any word on why those judges recused themselves?
- singingboyo 8y ago
  From what I've seen: Kavanaugh dissented on the lower court ruling (as it happened while he was still part of said lower court). So, he recused himself from re-hearing the case. Roberts has major holdings in Time Warner Cable, now merged with AT&T. AT&T was part of the case, so there's a conflict of interest there.
  - thaumasiotes 8y ago
    > Kavanaugh dissented on the lower court ruling (as it happened while he was still part of said lower court). So, he recused himself from re-hearing the case. This is an interesting reason to recuse. You're supposed to recuse in cases where you cannot be impartial (or, similarly, where you cannot appear to be impartial, regardless of your inner thoughts). Recusing because the defendant is your brother makes sense. But Kavanaugh was presumably offering a standard, "impartial" judicial opinion when he dissented on the lower court. It's definitely true that he's likely to come into the case at the Supreme Court level with a preformed opinion of the merits. Superficially, that's an obvious reason to recuse. But why? That preformed opinion was, by hypothesis, formed by considering the merits of the case as an impartial judge, which is the only thing he's supposed to do when hearing it in the Supreme Court too.
    - sbov 8y ago
      Because of https://www.law.cornell.edu/uscode/text/28/47 https://www.law.cornell.edu/uscode/text/28/47 It makes sense. When you appeal you want a different person's opinion, not the same person's multiple times.
      - thaumasiotes 8y ago
        It makes less sense on closer examination than it does at first glance. I want a different person's opinion when I lose in court, regardless of whether I do appeal or whether I can appeal. But wanting it doesn't mean there's a reason I should get it. I can appeal to a higher court because the higher court has authority over the lower one; the basis for an appeal is that the lower court made a mistake, not that I personally feel that I'd be better off with a judgment going the other direction.
        sbov 8y ago
        Courts make mistakes (in the appealer's view) because people misinterpret evidence/the law. If you get the same people in a higher court the same mistakes will happen again.
        thaumasiotes 8y ago
        But mistakes in the appealer's view don't matter. You win an appeal if the lower court made a mistake in the view of the higher court.
        deleted 8y ago
        [deleted]
- craftyguy 8y ago
  The article mentions why.
dragonwriter 8y ago
> Roberts and Kavanaugh recused themselves, and they both would have voted in favor of the challenge if they had voted. If at any point in the future the issue is retried and the two justices don't recuse themselves, a majority of the SCOTUS would side with the Telecoms. Even assuming Roberts and Kavanaugh would actually side with the telecoms in substance, the Justices that wanted to take the case did not side with the telecoms or even want to give them a hearing, they said they would have accepted the petition only as a vehicle to direct that the decision be vacated as having been rendered moot; the telecoms want a ruling that under the FCCs statutory authority, it can't order net neutrality. There were zero votes to even give that position a hearing.
- zerocrates 8y ago
  The USTA (the telecoms) position was that the lower decision should be vacated as moot: Thomas, Alito, and Gorsuch were indeed siding with the telecoms by being in favor of granting cert and vacating the circuit court decision. The (now-surviving) decision upholding the previous FCC order is an inconvenience for the telecoms as it's more or less a roadmap for reintroducing the FCC's previous rules under a Commission with a different makeup. Of course the ideal for them would be to have the case flatly overturned, that was obviously not in the cards once the FCC reversed itself. Vacating the decision would be the next best option (and, to be fair, one that's perfectly defensible as a proper course of action for the Court to take). It was also the new position of the FCC itself, for fairly clear reasons. So it's an interesting case where both parties, by the time of the actual decision, agreed on what they wanted the Court to do (and didn't get it). From the USTA's latest filing: > The petitions for a writ of certiorari should be granted, the decision below vacated, and the case remanded for the court of appeals to dismiss the petitions for review as moot.
SilasX 8y ago
Sorry if OT, but I'm kinda surprised Kavanaugh is already doing SC things; I thought there was some delay after swearing in or that the SC schedule was limited to fixed times of year.
- wool_gather 8y ago
  The schedule of cases is indeed limited to a portion of the year, and he missed the first few days of the session, but once he was sworn in, he was a justice. There's no waiting period.
kevin_b_er 8y ago
It is quite narrow and temporary. We are still at risk of the Republican Judiciary deciding that the FCC declining to regulate ISPs on the basis that they don't have the authority means the ISPs are immune to all state laws regulating them.
- jdmichal 8y ago
  By "all state laws", do you mean "all federal laws"? AFAIK, the FCC is a federal institution and has never upheld state laws. And, AFAIK, several states have re-introduced versions of net neutrality in various ways, specifically to route around the issues of the FCC abandoning any form of enforcement on such rules.
  - kevinh 8y ago
    The FCC is attempting to prevent the state laws from going into place.
  - alphabettsy 8y ago
    The FCC is trying to preempt state laws to prevent that from happening.
r00fus 8y ago
Sounds a lot like they're kicking the can to avoid impact to the midterm elections. Kavanaugh for sure is in hiding lest he inflame the Dems even more. They'll put NN on the operating table / torture room in Dec or Jan at the latest.

sctb 8y ago

Thanks, we've updated the link from https://www.theregister.co.uk/2018/11/05/supreme_court_neutrality/ https://www.theregister.co.uk/2018/11/05/supreme_court_neutr....

jagger27 8y ago

Any word on why those judges recused themselves?

singingboyo 8y ago
From what I've seen: Kavanaugh dissented on the lower court ruling (as it happened while he was still part of said lower court). So, he recused himself from re-hearing the case. Roberts has major holdings in Time Warner Cable, now merged with AT&T. AT&T was part of the case, so there's a conflict of interest there.
- thaumasiotes 8y ago
  > Kavanaugh dissented on the lower court ruling (as it happened while he was still part of said lower court). So, he recused himself from re-hearing the case. This is an interesting reason to recuse. You're supposed to recuse in cases where you cannot be impartial (or, similarly, where you cannot appear to be impartial, regardless of your inner thoughts). Recusing because the defendant is your brother makes sense. But Kavanaugh was presumably offering a standard, "impartial" judicial opinion when he dissented on the lower court. It's definitely true that he's likely to come into the case at the Supreme Court level with a preformed opinion of the merits. Superficially, that's an obvious reason to recuse. But why? That preformed opinion was, by hypothesis, formed by considering the merits of the case as an impartial judge, which is the only thing he's supposed to do when hearing it in the Supreme Court too.
  - sbov 8y ago
    Because of https://www.law.cornell.edu/uscode/text/28/47 https://www.law.cornell.edu/uscode/text/28/47 It makes sense. When you appeal you want a different person's opinion, not the same person's multiple times.
    - thaumasiotes 8y ago
      It makes less sense on closer examination than it does at first glance. I want a different person's opinion when I lose in court, regardless of whether I do appeal or whether I can appeal. But wanting it doesn't mean there's a reason I should get it. I can appeal to a higher court because the higher court has authority over the lower one; the basis for an appeal is that the lower court made a mistake, not that I personally feel that I'd be better off with a judgment going the other direction.
      - sbov 8y ago
        Courts make mistakes (in the appealer's view) because people misinterpret evidence/the law. If you get the same people in a higher court the same mistakes will happen again.
        thaumasiotes 8y ago
        But mistakes in the appealer's view don't matter. You win an appeal if the lower court made a mistake in the view of the higher court.
        deleted 8y ago
        [deleted]
craftyguy 8y ago
The article mentions why.

dragonwriter 8y ago

> Roberts and Kavanaugh recused themselves, and they both would have voted in favor of the challenge if they had voted. If at any point in the future the issue is retried and the two justices don't recuse themselves, a majority of the SCOTUS would side with the Telecoms. Even assuming Roberts and Kavanaugh would actually side with the telecoms in substance, the Justices that wanted to take the case did not side with the telecoms or even want to give them a hearing, they said they would have accepted the petition only as a vehicle to direct that the decision be vacated as having been rendered moot; the telecoms want a ruling that under the FCCs statutory authority, it can't order net neutrality. There were zero votes to even give that position a hearing.

zerocrates 8y ago
The USTA (the telecoms) position was that the lower decision should be vacated as moot: Thomas, Alito, and Gorsuch were indeed siding with the telecoms by being in favor of granting cert and vacating the circuit court decision. The (now-surviving) decision upholding the previous FCC order is an inconvenience for the telecoms as it's more or less a roadmap for reintroducing the FCC's previous rules under a Commission with a different makeup. Of course the ideal for them would be to have the case flatly overturned, that was obviously not in the cards once the FCC reversed itself. Vacating the decision would be the next best option (and, to be fair, one that's perfectly defensible as a proper course of action for the Court to take). It was also the new position of the FCC itself, for fairly clear reasons. So it's an interesting case where both parties, by the time of the actual decision, agreed on what they wanted the Court to do (and didn't get it). From the USTA's latest filing: > The petitions for a writ of certiorari should be granted, the decision below vacated, and the case remanded for the court of appeals to dismiss the petitions for review as moot.

SilasX 8y ago

Sorry if OT, but I'm kinda surprised Kavanaugh is already doing SC things; I thought there was some delay after swearing in or that the SC schedule was limited to fixed times of year.

wool_gather 8y ago
The schedule of cases is indeed limited to a portion of the year, and he missed the first few days of the session, but once he was sworn in, he was a justice. There's no waiting period.

kevin_b_er 8y ago

It is quite narrow and temporary. We are still at risk of the Republican Judiciary deciding that the FCC declining to regulate ISPs on the basis that they don't have the authority means the ISPs are immune to all state laws regulating them.

jdmichal 8y ago
By "all state laws", do you mean "all federal laws"? AFAIK, the FCC is a federal institution and has never upheld state laws. And, AFAIK, several states have re-introduced versions of net neutrality in various ways, specifically to route around the issues of the FCC abandoning any form of enforcement on such rules.
- kevinh 8y ago
  The FCC is attempting to prevent the state laws from going into place.
- alphabettsy 8y ago
  The FCC is trying to preempt state laws to prevent that from happening.

r00fus 8y ago

Sounds a lot like they're kicking the can to avoid impact to the midterm elections. Kavanaugh for sure is in hiding lest he inflame the Dems even more. They'll put NN on the operating table / torture room in Dec or Jan at the latest.