On Wednesday, the Supreme Court decided Helix Energy Solutions Group, Inc. v. Hewitt. The vote in Hewitt was 6-2. Justice Kagan wrote the majority opinion, joined by the Chief Justice and Justices Thomas, Sotomayor, Barrett, and Jackson. This is a heterodox majority opinion that split left and right, much like the heterodox Fifth Circuit en banc majority.
Justice Gorsuch voted to dismiss the case as improvidently granted, known in the lingo as a DIG. In Gorsuch's view, the Court granted review on one question, but after the cert grant, the Petitioner pivoted to focus on another question. Gorsuch also raised the question of whether the regulations were consistent with the statute.
Another reason counsels hesitation, too. Helix Energy does not just dispute the proper application of various regulations. It contends those regulations are inconsistent with and unsustainable under the terms of the statute on which they are purportedly based. While §541.601, §541.602, and §541.604 focus on an employee's salary, Helix Energy submits, the statute requires attention to the employee's duties. See Tr. of Oral Arg. 32–38, 46–47; Brief for Petitioners 41–44; Reply Brief for Petitioners 20–24; seegenerally 29 U. S. C. §213(a)(1). Understandably, the Court refuses to entertain this larger statutory argument because Helix Energy failed to raise it earlier in the litigation. Ante, at 7, n. 2. But the fact that Helix Energy forfeited such a foundational argument seems to me all the more reason to leave any question about §541.602 to another day.
