Thomas Abjures Brand X

I have written in recent years about the importance of net neutrality. Specifically, I have noted that net neutrality is legally mandated by the plain terms of the Telecommunications Act of 1996, and that the only reason it isn't treated that way is because of a bizarre 2003 Supreme Court decision that allowed the unelected FCC to override Congress on a technicality.

That decision was called NCTA v. Brand X. Justice Scalia authored the scathing dissent, joining liberal Justices Ginsburg and Souter. The majority opinion was authored by Justice Thomas, who was joined by a number of justices who no longer sit on the Supreme Court. Thomas is ordinarily the soundest justice. However, when he and Scalia opposed each other, Scalia sometimes had the better of the argument. That's what happened here: Scalia was right on. The FCC's position was absurd.

It is difficult to overstate how important Brand X is to the FCC's recent attempt to end net neutrality. The official "Restoring Internet Freedom" order provides legal justification for its decision between pages 10 and 40, and you can largely boil it down to "nannie-nannie poo poo Brand X says we can." The ongoing court case about net neutrality has boiled down to judges saying, "Yeah, this isn't following the law of Congress, but Brand X requires us to allow it anyway." (That is a paraphrase.)

Justice Gorsuch has long been the biggest critic of Brand X on the federal courts. I wrote about this when he was nominated for the Supreme Court. But Gorsuch was replacing Scalia, who also opposed Brand X, so it didn't change the balance of the court. Kennedy and Thomas still supported Brand X, while Gorsuch/Scalia and Ginsburg opposed it.

So it's kind of a big deal that, today, Justice Thomas took time to write separately, in a routine cert-denial order, that Brand X, a decision he authored, was completely wrong and should be overturned. His dissent begins on page 49 of this document, and quickly gets to the meat:

Although I authored Brand X, “it is never too late to ‘surrende[r] former views to a better considered position.’” Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation. Because I would revisit Brand X, I respectfully dissent from the denial of certiorari.

And that's just in the opening! The whole thing runs 11 pages.

We now know that there are 3 votes on the Supreme Court to overturn Brand X: Thomas, Gorsuch, and, if she hasn't changed her views since her original dissent, Ginsburg. We know of zero votes in favor of keeping it. (Kennedy retired in 2018.)

Unfortunately, the Court turned aside an invitation to kill Brand X today; Justice Thomas was writing to encourage the Court to hear Baldwin v. United States, which directly targeted Brand X, and the Court refused. This may mean that the Court overall still supports Brand X, but I consider it more likely that the Court is awaiting a more suitable vehicle for interrogating it, potentially the net neutrality case itself.

Although we can't know what will happen next, net neutrality supporters have good reason to take heart from Justice Thomas's change of mind today. The net neutrality case, Mozilla v. FCC, was denied rehearing just a couple weeks ago, which opens Mozilla's path to appeal to the Supreme Court.

Fingers crossed, folks.