The Supreme Court on Monday morning added a maritime law case to its docket for the 2023-24 term and invited the federal government to submit briefs expressing its views in two more cases. Both announcements came on an otherwise quiet order list released from the justices’ conference on Friday, March 3.
The justices granted review in Great Lakes Insurance SE v. Raiders Retreat Realty Co., a dispute that began after a yacht owned by Raiders Retreat Realty Co. ran aground in 2019, sustaining at least $300,000 in damage. Although none of the damage to the yacht had been caused by fire, the company that insured the yacht, Great Lakes Insurance SE, denied coverage on the ground that the yacht’s fire-extinguishing equipment had not been recertified or inspected on time. Great Lakes sued Raiders, seeking a declaration that the insurance policy was invalid; Raiders then filed five counterclaims.
The question that the justices agreed to decide on Monday arises from the policy’s choice-of-law provision, which indicated that New York law should apply to any dispute arising between Great Lakes and Raiders. Based on that provision, the district court dismissed Raiders’ counterclaims that were based on Pennsylvania law.
But the U.S. Court of Appeals for the 3rd Circuit reversed. Under federal admiralty law, it reasoned a forum-selection provision is unenforceable if enforcing it “would contravene a strong public policy of the forum in which suit is brought.” The district court, it explained, had not considered whether Pennsylvania “has a strong public policy that would be thwarted by applying New York law.”
Great Lakes came to the Supreme Court in November, asking the justices to weigh in, and on Monday they agreed to do so. The case will likely be argued sometime in the fall.
The justices called for the Biden administration’s views in two cases. The first case, Georgia-Pacific v. International Paper Co., involves the trigger for the statute of limitations in cases under the Comprehensive Environmental Response, Compensation, and Liability Act – also known as “Superfund” – for the clean-up of sites contaminated with hazardous pollutants.
In the second case, Lake v. Nextera Energy, the Biden administration will weigh in on the constitutionality of a Texas program that gives existing utility companies a right of first refusal to build new transmission lines.
Over a dissent by Justice Clarence Thomas, the justices denied review in City of Ocala v. Rojas, in which they had been asked to decide whether and when lawsuits challenging the government’s sponsorship of religious events can go forward – and, in particular, whether plaintiffs alleging psychic or emotional injuries from being exposed to religious messages have a right to sue, known as standing.
The case was filed by Art Rojas and Lucinda Hale, two Florida residents who attended a prayer vigil in Ocala, Florida, sponsored by the city’s police department in the town square. Rojas and Hale then went to federal court, where they argued that the vigil violated the First Amendment’s establishment clause, which bars the government from both establishing an official religion and preferring one religion over another.
Both the district court and the U.S. Court of Appeals for the 11th Circuit allowed the lawsuit to go forward. That led the city to seek review in the Supreme Court, which on Monday rejected the city’s appeal.
In a six-page opinion, Thomas argued that the justices should have granted the city’s petition for review. He had, he wrote, “serious doubts about the legitimacy of the ‘offended observer’ theory of standing applied below.” Even in cases involving the establishment clause, he argued, plaintiffs should only be allowed to bring a lawsuit if they have suffered concrete injuries from the conduct that serves as the basis for their lawsuit; psychological injuries are not enough. If the justices do not curtail “offended observer” standing here, he warned, it could spread to other areas of the law as well.
Justice Neil Gorsuch penned a short statement regarding the denial of review in the city’s case. Like Thomas, he expressed doubts about the plaintiffs’ right to sue, noting that the Supreme Court “has never endorsed the notion that an ‘offended observer’ may bring an Establishment Clause claim.” But, unlike Thomas, he saw no need for the court to take up the question now, noting that the dispute would continue in the lower courts, so that the city still would have the option to return to the Supreme Court later in the litigation.
The justices are in recess this week. Their next conference is scheduled for Friday, March 17.
This article was originally published at Howe on the Court.
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