commentary – Prof. Zachary Wolfe, Esq.

February cases

February 20, 2024case suggestions, commentaryLeave a Comment

Important cases in the last two weeks of February, including EPA regulations, social media moderation, and bump stocks.

Wednesday, February 21

The EPA’s Good Neighbor Plan is first up today in Ohio v. EPA and US Steel v. EPA. As the Congressional Research Service notes (in a report that would be very helpful to review) the Good Neighbor Provision of the Clean Air Act “requires upwind states to ensure that their emissions do not interfere with the ability of downwind states to meet federal air-quality standards.” The EPA now requires states to submit plans for how they will comply with that requirement. And as an equally helpful SCOTUSBlog preview notes, “Last February, the EPA rejected the plans submitted by 21 states that proposed no changes to their emissions plans. Instead, one month later, it published a federal plan for the states whose plans it had rejected, as well as two that had not submitted plans.” This comes in the context of a sense that several conservative members of the Court are suspicious of administrative agency powers, as was on display at the “Chevron deference” case argued last month.

Expect this argument to run very long. A total of one hour has been scheduled for primary argument, but there are four arguing counsel. After the primary argument time expires for each arguing counsel, each justice gets one more round of questioning.

Today’s second argument is on a technical procedural issue concerning the statute of limitations under the Copyright Act, in Warner Chappell Music v. Nealy. See a brief from EFF, American Libraries Association, and others.

Monday, February 26 — social media moderation

Exceedingly important cases today asking whether the state can, consistent with the First Amendment, regulate how social media companies moderate content on their platforms. Florida and Texas have each passed laws restricting social media companies, although who is protected from moderation is different. In brief, the Florida law provides that “[a] social media platform may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast“ and “may not willfully deplatform” or prioritize or shadowban a candidate for public office. The Texas law more broadly prohibits “censor[ing] a user, a user’s expression, or a user’s ability to receive the expression of another person” based on “viewpoint.”

The cases have received a great deal of attention so I will mostly just recommend the SCOTUSBlog preview. My own view is that there are strong reasons to doubt whether large social media companies are being responsible in the design and implementation of their products, but upholding the specific laws at issue in these cases will only make it harder to address the encroachment of hate speech, misinformation, and conspiracy theories that are substantial threats to the people’s ability to use social media for purposes that are key to free speech and a functioning democracy. For better or worse, large social media companies are the services from which Americans rent space for their “salon.” The public needs to be able to secure a venue from a provider who is not obligated to escort in guests who wish to insist that school shootings are “hoaxes,” even if that individual makes a living as a “journalist” or if the state might consider that a “viewpoint.”

The two cases (Moody v. Netchoice and Netchoice v. Paxton) have not been consolidated for argument, so expect arguments to run 3-4 hours.

Tuesday, February 27

Two technical issues today that I would not recommend for the casual observer.

McIntosh v. U.S. asks whether a district court may enter a criminal-forfeiture order outside the time limitations set forth in Federal Rule of Criminal Procedure 32.2.

Cantero v. Bank of America asks whether the National Bank Act preempts the application of state escrow-interest laws to national banks.

Wednesday, February 28 — bump stock ban and arbitration agreements

First up is an extremely important issue that is clearly summarized in the official question presented: whether a bump stock device is a “machinegun” as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires ‘automatically more than one shot … by a single function of the trigger.'” Vox has a very useful summary of the issues in Garland v. Cargill.

The final February case involves arbitration clauses. The Court has generally (but not uniformly) favored those pushing for greater ability to enforce contracts mandating arbitration, against a variety of challenges. Sometimes it is not clear whether the specific dispute is covered by an arbitration agreement. And sometimes, a contract will provide that questions about whether a dispute is subject to arbitration should be decided by the arbitrator rather than a judge (“delegate questions of arbitrability,” in the lingo). But what happens if the parties have agreed to multiple contracts, only the earlier of which clearly sends such questions to an arbitrator? Hence the issue today in Coinbase, Inc. v. Suski: “whether, where parties enter into an arbitration agreement with a delegation clause, an arbitrator or a court should decide whether that arbitration agreement is narrowed by a later contract that is silent as to arbitration and delegation.”

Thursday, Feb. 8 — Trump office eligibility & ballot access

February 1, 2024February 6, 2024case suggestions, commentaryLeave a Comment

The Court convenes February 8 for an extraordinary Thursday session to hear arguments in Trump v. Anderson, in the specific issue of Donald Trump’s eligibility to be on the Colorado ballot for Republican candidate for the Presidency of the United States, with obvious nationwide implications concerning Section 3 of the Fourteenth Amendment. I normally save my independent analysis for cases that have not already received such vast public attention, but this time I want to highlight some legal issues and lines of argument that may have been drowned out in the political talk and even some of the more law-oriented coverage. (Although I’ll still mostly recommend reading those who have really done the hard work!)

I read the Trump petition and found the vast majority of the claims to be without merit. As Akhil Amar put it in previewing the analyses he fully develops later in his amicus brief:

Of course the president is an “officer” covered by Section Three. Of course a detailed congressional statute is not necessary to implement Section Three. Of course an ineligible person is ineligible unless and until amnestied. Of course a person can engage in an insurrection with words as well as deeds. Of course an insurrection can begin locally.
– Amicus Curiae Brief of Akhil Reed Amar and Vikram David Amar in Support of Neither Party

I’ll add that I’ve found the focus on a precise definition of engaging in insurrection frustrating given that the Amendment also imposes ineligibility on those who have “given aid or comfort to the enemies” of the Constitutional order.

I recommend beginning with that Amar brief, which itself begins by discussing how a pre-Civil War insurrection that parallels January 6 was on the minds of the Radical Republican drafters and makes clear that such actions were meant to be disqualifying after the Reconstruction Amendments. Those and other analyses are buttressed by another group of law scholars. And I strongly recommend a really compelling brief on the history and original intent of the 14th Amendment written by a group of historians (all of whom “are elected members of the American Academy of Arts and Sciences and winners of either the Pulitzer or the Bancroft Prize or both,” and two of whom gave an NPR interview on this).

The more difficult question is whether Trump’s current ineligibility to hold office means that he is also ineligible to run for office. The Amendment uses the word “hold” and provides that Congress may vote to remove that ineligibility; presumably that vote could come even after an election. So at first blush, this appears to be Trump’s strongest argument. But as the top quote signals, Amar handily dispatches that argument, too.

Among the many good arguments on this is an important federalism overlay that I think is often missed — and it’s intriguing to see states’ rights lining up the way it does in this case. It is perfectly reasonable for Colorado to limit ballot access to persons who are eligible for that office. And moreover, our federalist system holds that it is the role of the Colorado courts “to say what the [Colorado] law is.” The Brennan Center for Justice (out of NYU Law) has a thoughtful amicus brief on this, explaining that for the US Supreme Court to override Colorado’s interpretation of that state’s election laws would be a variation on the absurdist “independent state legislature theory” that the Court soundly rejected just last summer.

Finally, do not miss the NAACP LDEF brief. It is a powerful call (grounded in strong legal analysis, as always) to preserve the Reconstruction Amendments, warning the Court not to repeat its past shameful errors of issuing decisions (notoriously but not limited to Plessy v. Fergusson) that undermined the meaning and practical enforceability of those provisions that were designed and remain necessary to preserve democracy.

Getting the most out of the arguments

Read up. Above are many more links than I usually share, but I strongly recommend at least reviewing the table of contents and introductory section of each, and reading the full arguments that interest you most. Even more than most cases these days, this case will be seen in a politicized context but understanding the fully developed legal arguments will allow you to engage with (and possibly critique) the arguments from a less-entrenched perspective.

Argument begins at 10:00 and all arguments are open to the public. Expect arguments to run until at least noon and possibly 1:00 (particularly if the Court grants a recent request for divided argument and additional time). Edit: the Court granted that motion in part. 80 minutes total time but 3 arguing counsel. When the allotted time expires, each Justice gets one more round of questioning for that lawyer (which often adds 15-30 minutes each round, times 3 lawyers).

Attend in person if you can. Lines to get into the Court have been quite reasonable so far this term, with people arriving around 6am and still getting in for somewhat high-profile cases — but surely a Trump case will be different. I’ve been guessing 3am for cases with a lot of public interest and I would try to get there as early as possible for this one. More details here.

Listen live online if in-person is impractical. The front page of supremecourt.gov has a link or see the audio page. You might also see if scotusblog is live-blogging.

Swing by if you can. If you’re in DC but a very early and full morning at the Court isn’t an option, it is worth coming by the Court to take in the atmosphere. When the session concludes, arguing counsel will come out and hold press conferences on the sidewalk in front of the plaza. There will likely be demonstrators all morning.

Or take it in when you can. Recordings, transcripts, and transcript-synchronized recordings will be available later.

Quick thoughts on eviction moratoria

August 27, 2021commentary

Surprising no one, the Supreme Court has now found that the CDC eviction moratorium is beyond the scope of the CDC’s powers and effectively blocked it. (Technically, they denied an application to stay, thus directing enforcement of a lower-court ruling. But the opinion makes clear that the majority backs that reasoning on substance, not just technical grounds re when a stay is appropriate.)

While that effectively ends the federal ban, there are many states and localities with eviction moratoria that are still in effect — at least for now. Some but not all of those laws have provisions that are legally infirm for the same reasons that part of NY’s ban was struck down. Others are gradually ending.

From a legal perspective, the opinions and dissents are all worth reading with an open mind; there are good arguments that the CDC overreached, and good arguments that courts should consider it more before blocking the moratorium. In my personal political view, I really wish the focus had been on getting the money out to people so the evictions would be stopped not because of a moratorium but simply because landlords were getting paid and tenants weren’t racking up massive arrears that stick with them and cause problems regardless of a moratorium. There is more than $40 billion allocated specifically for rental assistance (to say nothing of unemployment insurance payments that have also been slow to distribute) that is still sitting there instead of going to the people who are facing eviction. We would have needed a moratorium for several months, because getting that money disbursed is no easy task. But this far out, it seems to me that at least some of that energy expended on demanding repeated extensions of the moratorium (even after noting that it was probably unlawful) should instead have gone into mandating and enforcing procedures to disburse the funds that were allocated (especially since we have models of some localities that managed to do so effectively). Some of that started this week, but the money was allocated last year. The fuss should be over that, rather than moratoria.

October Arguments by Phone, without RBG

September 19, 2020case suggestions, commentary

Last Wednesday, the Supreme Court confirmed that the October arguments (cases are previewed here) will be conducted by telephone, following the same method used last spring. I have a separate page with information about online access (live and later), but if you’re just looking for a good way to listen live, then I recommend https://www.c-span.org/supremeCourt/. Arguments begin at 10am Eastern.

When the 2020-21 session opens in October with those telephonic arguments, it will be the first time in 27 years that Justice Ruth Bader Ginsburg (who was confirmed in 1993, about two months before the session opened) will not be a member of the Court. I have no words that can contribute to understanding this loss of such an extraordinary jurist. I am appreciative of the survey of her life’s work that Linda Greenhouse has offered us, and of the thoughtful statements and renewals of commitment from advocacy groups like the Center for Constitutional Rights.

Ruth Bader Ginsburg Seed Art Minnesota State Fair 2019 RBG

“Ruth Bader Ginsburg Seed Art Minnesota State Fair 2019 RBG” by Mpls55408 is licensed under CC BY-NC 2.0

About that one Gorsuch opinion….

June 16, 2020commentary

Yesterday’s Supreme Court decision that Title VII of the Civil Rights Act of 1964 prohibits firing an employee simply because of sexual orientation or gender identity is truly momentous and will mean improved employment security for countless people throughout the country, notably those who live in the majority of jurisdictions with no state- or local-level prohibition on such discrimination. Beyond that wonderful take-away, there is a lot to digest. Much of the mainstream coverage matches my thoughts when I was reading the opinion, but I have a few additional thoughts I’d like to set out regarding Justice Gorsuch’s role and the similarities and differences between this decision and the sexual orientation cases of recent years.

That an opinion prohibiting LGBT discrimination would come from Justice Gorsuch is certainly a major surprise, but Reagan-appointee Justice Kennedy was no obvious ally when he wrote Lawrence v. Texas (striking down sodomy laws) in 2003 or US v. Windsor (striking down the federal Defense of Marriage Act) ten years later, and we were still on the edge of our seats in 2015 before he released the majority opinion in Obergefell v. Hodges (holding that the 14th Amendment requires the state to recognize same-sex marriage). (As an aside, all those decisions were issued on June 26. Yesterday was a break from what some people thought was a tradition, even if based on a very small sample size.)

Still, there is a notable difference in style and tone. The opening paragraph in Lawrence declares that “[t]he instant case involves liberty of the person both in its spatial and more transcendent dimensions.” Obergefell begins “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” and Kennedy gets more poetic and philosophical from there.

In contrast, Bostock begins “[s]ometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them.” It then adds that “[i]n our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964,” but that’s as close as we get to recognition of the importance of the rights at issue in these cases. The emphasis — the chosen framework — is on the meaning of the words in the statute; an academic exercise rather than an examination of the principles of rights.

That difference is legally appropriate and, to some extent, required because Kennedy was interpreting constitutional provisions that required him to expound the meaning of “liberty” while Gorsuch was charged with interpreting the meaning of the word “sex” in a Congressional statute. Moreover, other cases had already made clear that “sex” includes sex stereotyping and sexual harassment, and that the statute prohibits other kinds of discrimination that might be given a label that is not one that actually appears in the text of the statue. It is very hard to see an intellectually satisfying way to say LGBT discrimination is not sex discrimination if we’ve already accepted that it is unlawful to discriminate against a woman for being a “tomboy” (to say nothing of the fact that we also (almost) universally accept that it is discrimination on the basis of race even if the person has no bias against any individual’s race but only interracial marriage).

So the Gorsuch opinion is rather bland as judged by its analysis and certainly by its rhetoric. His approach is methodical: there’s a statute that uses specific words, we have established analytical frameworks for how we decide what those words mean as well as significant relevant precedent, and so Gorsuch went through a routine analytical process and came to a logical conclusion.

What is remarkable is that he did not shy away from his own conclusion. It is reassuring that he would rule in a way that almost certainly is against his personal political views and it is deeply troubling that it’s remarkable to us that a Supreme Court Justice appointed by Trump actually cares about analytical consistency and intellectual honesty.

This most certainly does not mean that he is likely to side with what remains of the liberal wing of the Court as a general matter. It doesn’t even mean that he has moderated his views or shifted to an understanding of the law that is closer to those who believe in a “living constitution” or employ other analytical frameworks that more often lead to progressive conclusions. It only means that he might not engage in the kind of tortured logic on display in the dissenting opinions in order to avoid a particular outcome when his own legal analysis happens to bring him to a conclusion that is also one a progressive (or even someone like Posner) might arrive at through different means. (My initial reaction to Obergefell five years ago also noted that Kennedy got there through a narrow framework that was less valuable for other LGBT rights issues.)

We’ll have to see if this lasts, and it will only be relevant in rare instances. The way Gorsuch approaches other legal issues (such as the free exercise clause and how it applies the the ministerial exception, to mention just one case that should be decided later this month) almost certainly won’t wind up pulling him to conclusions that conflict with his ideology. Regardless, it’s nice to be surprised in this way. Scalia used to occasionally rule in ways that contrasted with how people thought of him, Roberts has repeatedly done so now, and it looks like there’s another Justice who just might surprise us from time to time.

Live streaming

May 4, 2020case suggestions, commentary

Two historic firsts this morning: the Supreme Court heard oral arguments in a case via teleconference and it allowed the public to listen in live. A few quick notes on what I found interesting and tips if you’re considering listening in for other cases this month. (Notes on the cases are here; this Wednesday and next week are going to be particularly interesting.)

The best way to get the arguments appears to be c-span.org/supremeCourt/ . Other likely sites I checked either weren’t streaming the arguments or had poor audio quality. Also, c-span followed the arguments with an interesting virtual-panel discussion moderated by National Constitution Center’s Jeff Rosen.
The Justices are taking turns! For anyone who is used to the back-and-forth questioning, this is truly bizarre. Arguing counsel is allowed to make an opening statement uninterrupted for about 2 minutes, then the Chief Justice asks questions for about 4 minutes, and then each Justice, in order of seniority, gets no more than 4 minutes. Yes, this also means they ran a little over the usual 30 mins/side. I don’t know if the Chief will become more or less strict with the timing, but this orderly turn-taking is the plan.
- Justice Thomas used his time and asked multiple questions! He has previously said that he so rarely participates in oral arguments because he wants to hear arguing counsel make their case without interruptions, so maybe this new format is more acceptable to him.
- You definitely lose something. Justices can’t follow-up on others’ questions (except as continuation of the prior question) and the “flow” makes less sense, since the questions are based on whose turn it is rather than a topic of inquiry. But it did seem to allow arguing counsel to offer more structured points (although it’s hard to say with a sample size of two; they might have just been especially good litigators).

Radio Interview & Twitter

January 29, 2020case suggestions, commentary

I surveyed some recent and upcoming Supreme Court cases for a segment on Law & Disorder with Heidi Boghosian and Michael Smith. My segment starts at 31:45.

At the end, they were kind enough to ask where people can follow my writing, and I felt quite outdated in giving a website. So I have now created a Twitter account. Follow @profzwolfe to know when there are new posts here (and, perhaps eventually and rarely, other content).

Amicus Brief in Silk Road Case

February 5, 2018commentary

Today, my friend Heidi Boghosian and I have filed an amici curiae brief urging the Supreme Court Court to review the conviction and sentence of Ross Ulbricht in the “Silk Road” case. The petition for cert. was Scotusblog’s “petition of the day” last month. Our brief describes two major areas of concern that the Supreme Court should review and correct.

First, the government tracked Mr. Ulbricht’s internet activity without ever showing probable cause for such a search. The Circuit Court of Appeals upheld this, finding that monitoring internet activity is subject to no greater privacy protection than monitoring what phone numbers a person dials. Although the Supreme Court has expressed concern with the privacy interests in online activity, it has never specifically addressed this situation, and it is high time to make clear that our online activity may not be monitored absent a showing of probable cause.

Second, during sentencing, the judge made clear that she was basing the sentence on her belief that Mr. Ulbricht was guilty of murders for hire and causing other deaths—but he was never charged with homicide, and the jury made no findings in this regard. Over the past decades, the Supreme Court has been reviewing the right to a jury trial where disputed facts would increase a sentence, but again, this particular scenario (of a sentence that is far beyond the Sentencing Guidelines, but technically within the statute) needs to be addressed. Moreover, the judge expressed hostility to Mr. Ulbricht’s political views in opposition to the “war on drugs” and, of course, sentences based on the judge’s dislike of the defendant’s ideology cannot be tolerated.

The brief was joined by a range of organizations concerned with privacy rights and the right to a jury trial: National Lawyers Guild, American Conservative Union Foundation Center for Criminal Justice Reform, FreedomWorks, Human Rights Defense Center, Judge Nancy Gertner (ret.), National Coalition to Protect Civil Freedoms, Partnership for Civil Justice Fund, and People’s Law Office.

Amicus in Port Militarization Resistance case

January 31, 2016commentary

An important case, Panagacos v. Towery, involving Army spying on US activist groups is back at the 9th Circuit, and my friend Heidi Boghosian and I wrote this amici curiae brief on behalf of a number of organizations (Iraq Veterans Against the War, National Lawyers Guild, A.J. Muste Institute, Campaign to Bring Mumia Home, Granny Peace Brigade, Time’s Up!, and War Resisters League).

The brief discusses the historic and contemporary importance of maintaining a line between law enforcement and military operations, and argues that the 9th Circuit should “allow a jury to evaluate the real effects on Plaintiffs’ ability to exercise their constitutional rights of the cumulative practices of Army personnel, working with a local fusion center, in monitoring and acting against the Plaintiff anti-war group Port Militarization Resistance.” More info is on http://www.peoplevtowery.org.

Marriage equality and peoples’ struggles win at the Supreme Court

June 26, 2015commentary

Category: commentary