Not right away, but it’s thrown down the gauntlet. In denying certiorari in Marek v Lane, Chief Justice Roberts took the time to issue an accompanying opinion. Marek v. Lane, No. 13-136, 2013 U.S. LEXIS 7772 (Nov. 4, 2013). In it, the Chief Justice takes the time to rehearse the facts behind the controverisal Facebook Beacon settlement. (In a nutshell: Facebook allegedly instituted an opt-out program that broadcast various commercial preferences of its members. The settlement cost Facebook $9 million; 25% went to the lawyers, roughly 75% went to create a new privacy-oriented foundation whose three-member board would include a Facebook employee. The class received no money.)

Justice Roberts did not reject certiotari because he approved of the settlement. Instead, he signalled that he was keeping the Court’s powder dry for a case that would allow for a more sweeping ruling:

Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Granting review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action litigation, including when, if ever, such relief should be considered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues.

(Emphasis added) It’s not unheard of to write an opinion accompanying a denial of certiorari, but it is uncommon. And writing one that offers a roadmap for the next appeal? That’s even rarer. In my not-terribly-expert view, this is a clear signal that the Chief Justice (and likely four others) have some ideas about cy pres relief.

There appear to be two takeaways from this opinion. First, when dealing with the Roberts Court, go big. Second, cy pres as we know it may have a limited lifespan.