Recapped: Standing and Lots of Government Pennypinching

It was a packed week at the Supreme Court with five oral arguments. Check out my preview for background about the cases. I've got to pack for spring break, so let's get to it!

Monday

The first argument of the week, Becerra v. San Carlos Apache Tribe & Becerra v. Northern Arapaho Tribe, concerns funding for Native American tribe members’ healthcare. When tribes opt to contract with the government and administer healthcare services directly, they receive appropriated funds the government would have spent on those services. They also are supposed to be reimbursed for contract support services including audits, certain taxes, and regulatory compliance costs. The question is whether the costs associated with collecting what’s known as "program income" from third parties are contract support services.

A theme that came up repeatedly was how much this would cost the government.

The attorney for the government asserted that this could cost between $800 million - $2 billion per year. Justice Sonia Sotomayor jumped in, "[Y]ou've been talking about this costing a lot. It may well be … But I understand that in terms of tribal healthcare, it's about one-third of what is spent by the average American on their own healthcare. So it's not as if all of this money is bringing us a luxury healthcare spa. It's actually bringing us to a fairly minimal level of healthcare for tribal members." 

Justice Neil Gorsuch asked the tribes' attorneys, "Do you know how much money your client is seeking in contract support costs roughly?" Adam Unikowsky, one of the attorneys, said they were seeking $1.5 million for two years, and the other said $1 million per year. The government's $800 million to $2 billion figure was simply "an unexplained estimate … that's not in the record." Unikowsky continued, "I don't think that the amount of money in hypothetical judgments from a number that is not in the record and it was just taken out of nowhere is a basis to decide this case against the tribe." 

At one point, Justice Samuel Alito wondered whether it was improper for the Court to even consider the costs. 

The second argument of the day, Harrow v. Department of Defense, concerned whether missing a 60-day filing deadline to appeal a ruling by the Merit System Protection Board deprived a reviewing court of jurisdiction to hear the appeal. The Supreme Court has previously held across a variety of areas that these sorts of filing deadlines are not jurisdictional. This comment from Justice Gorsuch wraps up the argument:

What is your understanding as to why the government has resisted your client's case so … strongly? I mean … he spent seven years waiting, five of which were because the government couldn't manage to get a quorum together to resolve it, sent an email to an old email address, and he acted as quickly … as he could when he got it, and yet here we are in the Supreme Court of the United States over a $3,000 claim … I'm just kind of surprised … the government's making us do this one.

On Tuesday, the Court heard FDA v. Alliance for Hippocratic Medicine, a challenge to FDA actions relaxing safety protocols for the abortion drug mifepristone, including allowing it to be prescribed remotely and shipped to a patient’s home. 

Nearly the entire 90-minute argument focused on whether an organization of doctors has standing to challenge FDA’s actions. The lower court held the challengers have individual and associational standing based on their conscience objections to performing abortions as well as their time and resources that are diverted away from their regular labor and delivery patients to deal with patients suffering complications from mifepristone as a result of FDA’s actions. 

Justice Clarence Thomas asked Solicitor General Elizabeth Prelogar the first question: "If we agree with you on standing, could you give us an example of who would have standing … to challenge these FDA actions?" 

Prelogar explained that prescribing doctors might, or patients who want greater access to a drug, but "if the question is whether there would be individuals who generally oppose abortion who would have standing and want to challenge FDA's actions, the answer to that is no … because those people aren't regulated in any relevant way under FDA's decisions here."

Justice Alito was not buying it. "Is there anybody who can sue and get a judicial ruling on whether what FDA did was lawful?" Alito asked. "[M]aybe what they did was perfectly lawful, but shouldn't somebody be able to challenge that in court? … So your argument is that it doesn't matter if FDA flagrantly violated the law, it didn't do what it should have done, endangered the health of women, it's just too bad, nobody can sue in court?" 

Prelogar responded that "with respect to these regulatory changes, it's hard to identify anyone who would have standing to sue, but the Court has said time and again that the fact that no one would have standing doesn't provide a basis to depart from Article III principles." Gotta love agencies' ability to safeguard their actions from scrunity by courts.

If you're sensing some frustration emanating from Justice Alito, perhaps it’s because the Court’s standing jurisprudence has not always been consistent. And specificially in the abortion context, for decades courts have allowed doctors and clinics to challenge abortion regulations (i.e. the limiting kind) on behalf of women they assert would be harmed. But several of the justices expressed skepticism about the doctors' standing, so sauce for the goose may not be sauce for the gander, as Justice Breyer is fond of saying.   

Justice Gorsuch brought up the “rash of universal injunctions” entered by courts in recent years. This has become a preoccuption of the justice's.

[T]his case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on … an FDA rule or any other federal government action … I went back and looked, and there are exactly zero universal injunctions that were issued during Franklin Delano Roosevelt's 12 years in office, pretty consequential ones. And over the last four years or so, the number is something like 60 … they're a relatively new thing. And you're asking us to extend and -- and pursue this relatively new remedial course which this Court has never adopted itself. Lower courts have kind of run with this.

Franklin "No Nationwide Injunction" Roosevelt

Erin Hawley, the attorney for the doctors, replied that a universal injunction halting FDA’s 2016 and 2021 changes was the "only availability for relief … Otherwise, those parties are simply out of luck, and that's inconsistent with equity." 

Justice Amy Coney Barrett asked several questions about the individual doctors’ conscience claims and Justice Ketanji Brown Jackson wanted to know if courts owe any deference to FDA experts, wondering whether it’s better to have judges or experts "parsing medical and scientific studies." 

Justices Thomas and Alito both asked about the Comstock Act, which prohibits mailing drugs that are "advertised or described in a manner calculated to lead another to use or apply it for producing abortion." Should FDA have considered this when it, in effect, authorized mifepristone to be shipped directly to patients?

Solicitor General Prelogar said the act’s provisions "don’t fall within FDA’s lane," and it didn’t "affirmatively approv[e] mailing in violation of Comstock" (that's a lawyerly answer if I ever heard one, since FDA simply left it to doctors to decide the best way to dispense the drug).

Hawley had a different perspective, remarking, "We don’t think that there’s any case of this Court that empowers FDA to ignore other federal law… [T]he Comstock Act says that drugs should not be mailed … either through the mail or through common carriers. So we think that the plain text of that, Your Honor, is pretty clear."

Chief Justice John Roberts and Justice Brett Kavanaugh remained relatively sphinx-like, posing only a handful of questions between them. 

Answer me these questions three.

Wednesday 

First up Wednesday was Erlinger v. United States, which concerns whether the Sixth Amendment requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were committed on separate occasions in order to impose an enhanced sentence under Armed Career Criminal Act. One exchange that caught my eye was when Justice Thomas asked whether the Court would need to overrule an earlier case. 

Jeffrey Fisher, the attorney for Erlinger who has argued a few dozen cases, including the landmark Confrontation Clause case, Crawford v. Washington, replied, "I think the Court should someday, but I don't know the Court needs to do it in this case." Justice Alito pressed him further, and Fisher said, "Well, I'm not even asking you to do that today, Justice Alito … but, if you did, I suppose fair is fair." Wink wink, nod nod.

Closing out the week was Connelly v. United States. The question presented is whether the proceeds of a life insurance policy taken out by a closely held corporation to facilitate the redemption of a shareholder’s stock is a corporate asset when calculating the value of the shareholder’s shares for federal estate tax. Two questions made the government sound a little greedy, if you ask me.

Justice Barrett wanted to know "Do you agree that none of the money escapes taxation because more value … I mean the $3 million of the life insurance proceeds didn't vanish, as you say it's retained by the company, and [Connelly's attorney] Mr. Shanmugam was pointing out that [the petitioner] will be taxed on that as a capital gains tax when he sells out his shares. So Mr. Shanmugam says that means that the government is double dipping."

And Chief Justice Roberts posed this question to the government, "Do you dispute your friend's statement that this has been a common way for family corporations to maintain continuity of operations? And … if that's the case … how long has the government overlooked the fact that there was this great pool of money out there waiting for them to take?"

Great pool of money, you say?

The justices won’t meet again until mid-April, so I’ll leave you with my favorite SCOTUS moment of the week: Alito’s new spin on Scalia’s classic about hiding “elephants in mouseholes." Did Congress hide a “mastodon in an ant hill”? 

Keeping up with the Court: 3/25/24

The Supreme Court kicks off another week of arguments before taking a brief break until its mid-April sitting. Catch up on last week’s arguments here; and if you’ve already wished Anastasia a (belated) happy birthday, then let’s get to it.

Monday

First up this week is Becerra v. San Carlos Apache Tribe & Becerra v. Northern Arapaho Tribe, a case concerning funding for Native American tribe members’ healthcare. In the 1970s, Congress enacted two laws aimed at improving healthcare for members of Indian tribes. The Indian Self-Determination and Education Assistance Act allows tribes to contract with the federal government for healthcare services that were previously provided by the Indian Health Service (a division of the U.S. Department of Health and Human Services). When tribes opt to contract with the government, they receive the appropriated funds the Indian Health Service would have spent administering these services.

Tribes also are reimbursed for “contract support services,” including administrative expenses—audits, certain taxes, state workers’ compensation insurance, etc.—incurred by the tribe. The Indian Health Care Improvement Act authorized Indian Health Service facilities (operated by the government or contracting tribes) to collect “program income” from Medicare, Medicaid, and private insurers for services provided to Indian patients. Tribes use this income to expand and improve services. The question in these cases is whether the government must reimburse tribes for contract support services they incur in the course of collecting program income from third parties. 

When the Indian Health Service runs a tribal healthcare program, it farms out certain administrative functions to other governmental entities (and may avoid certain expenses entirely), but the tribes don’t have this luxury. They argue that denying reimbursement for contract support services penalizes them for entering into the government contract in the first place because they have to dip into the funds appropriated for healthcare services to cover any unreimbursed contract support services. The government claims that the statute only requires it to pay contract support costs for appropriation-funded activities. (The government, as always, is keeping its eye on the bottom line.) Both sides claim the text supports their view. While the tribes have a variety of amici supporting their position, the government is the proverbial cheese standing alone.

Sometimes it's lonely being the government.

In the second argument of the day, the Court will hear Harrow v. Department of Defense, yet another case considering whether courts lack jurisdiction to hear claims that have been filed after a statutory filing deadline has passed. Just last term, in Wilkins v. United States (a Pacific Legal Foundation win!), the Court determined that the federal Quiet Title Act’s statute of limitation was not jurisdictional. Thus, a property owner’s suit over a government easement on his property could press on despite (allegedly) being filed after the limitation period had run. In recent years, the Court has ruled on similar jurisdictional questions in cases involving copyrights, federal tort claims, tax courts, and Veterans Court appeals. 

Now the Court turns its focus to the law governing appeals from the Merit Systems Protection Board (MSPB), an agency that handles federal employees’ disputes with the government. A Department of Defense employee challenging his furlough asked the U.S. Court of Appeals for the Federal Circuit to review an MSPB ruling against him. The only problem (well, one problem, considering the MSPB sat on Harrow’s appeal for five years because it lost its quorum), is that Harrow missed the 60-day deadline to appeal. He points to the Court’s reading of other statutes to support his position that Congress did not prohibit courts from tolling a statute of limitation for appeals of MSPB actions. And surprise, surprise, the government says Harrow is out of time and out of luck. My prediction is that the Court will continue its march through the U.S. code to clarify that missing a statutory filing deadline does not deprive a court of jurisdiction to hear a case.

Tuesday

The justices, perhaps wisely, only scheduled one argument for Tuesday. FDA v. Alliance for Hippocratic Medicine and Danco Laboratories LLC v. Alliance for Hippocratic Medicine are consolidated for one hour of argument, but considering the subject matter, be prepared for this one to go into overtime.  

Buckle up because I’m going to sprint through the background. 

(Photo: Robin Alam/Icon SMI/Corbis)

The case concerns mifepristone, a drug approved by the U.S. Food and Drug Administration (FDA) in 2000 for terminating pregnancies up to the seventh week of gestation. FDA placed strict safety protocols on its prescription given the risk of complications that would require emergency surgical intervention. In 2016, the pharmaceutical company that distributes Mifeprex (mifepristone’s brand name) sought and FDA approved several changes to the safety protocols including increasing the maximum gestational age when a patient could take mifepristone from 49 to 70 days, eliminating the requirements that doctors conduct an in-person follow up appointment and report nonlethal adverse effects, and allowing non-doctors to prescribe the drug, among other changes. FDA approved a generic version of mifepristone in 2019 and announced in 2021 it would not enforce an in-person dispensing requirement in light of the COVID-19 pandemic, allowing doctors to prescribe remotely and ship drugs to patients to take at home. 

Medical organizations and individual doctors (including OB/GYNs, hospitalists, and emergency room doctors) challenged the 2000 approval, 2016 amendments, 2019 approval, and 2021 non-enforcement decision for violating the Administrative Procedure Act (APA), which requires a court to “hold unlawful and set aside agency action … found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” The district court granted their motion for a preliminary injunction, in part. It exercised authority under the APA to order “less dramatic relief” than suspending FDA’s approval of the drug, instead returning to the safety protocols in place before the 2016 amendments. The district court called this postponing the effective date under 5 U.S.C. § 705). After ping-ponging between the courts last spring, the Supreme Court halted the district court’s stay pending appeal. 

In August, the U.S. Court of Appeals for the Fifth Circuit held that: 

1. The challengers have associational standing to challenge everything except the 2019 generic approval; 

2. The claims challenging the 2000 approval were likely barred by the six-year statute of limitations for challenging federal administrative action; 

3. The challengers were likely to succeed on the merits of their claim that the 2016 amendments were arbitrary and capricious because FDA did not consider the cumulative effect of those changes, instead relying on studies that examined changes individually; and

4. The challengers were likely to succeed on the merits of their claim that the 2021 non-enforcement decision was arbitrary and capricious because FDA lacked sufficient data concerning adverse effects (conveniently, after no longer mandating doctors report that) and relied on literature that did not actually support its position.

Now at the Supreme Court, the government (and Mifeprix manufacturer Danco) argue that the challengers lack standing because they have shown neither a cognizable injury nor that their injuries are fairly traceable to the government’s actions. The government maintains that FDA’s 2016 and 2021 actions were lawful and that the APA “does not require agencies to act based on perfect data” but instead that they act “reasonably based on the information available.” Finally, the government contends the district court’s “sweeping” choice of relief—postponing the effective date of FDA’s actions that occurred years before—is improper and “alter[s] a years-long status quo.” 

The challengers argue they have standing to challenge FDA’s actions, pointing to the substantial risk of concrete harms (such as being forced to violate their consciences by participating in elective abortions, diverted time and resources, and increased liability and insurance costs). They also maintain FDA’s decision to throw out safeguards that, as recently as 2020, it called “necessary” and “minimally burdensome” is “textbook” arbitrary and capricious agency action in violation of the APA. They urge the Court to affirm the preliminary injunction and not to remand for agency reconsideration since the APA bars “post hoc rationalization” and FDA has failed to provide a reasonable explanation for its actions during the course of this litigation. “Nothing suggests it could do so now.”   

The argument will feature an all-female lineup of advocates including Mrs. Josh Hawley, whom Politico dubbed the “work horse” to her husband’s show pony. Perhaps we should call him Mr. Erin Hawley instead. And while I haven’t taken the time to tally up amicus briefs that were filed in some of the other big cases of the term, I suspect this one may very well hold the record for this term, with 36 amici on the government’s side and 38 on the respondent’s side.

Wednesday 

The justices will kick off the day with Erlinger v. United States, an Armed Career Criminal Act, which is the gift that keeps on giving to the SCOTUS criminal defense bar as the Court seems to hear at least one ACCA case each term. This case concerns sentencing of Paul Erlinger (not to be confused with Herb Ertlinger) for illegally possessing a firearm. The district court imposed a 15-year mandatory minimum sentence based on Erlinger having three prior convictions for violent felonies (burglary convictions under Indiana law). Erlinger challenged his enhanced sentence, arguing that the three burglaries were not committed on different occasions, which ACCA requires, and in any event, the Sixth Amendment mandates a jury—not a judge—decide the question.  

The question presented is whether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under ACCA. In an interesting turn of events, the federal government has declined to defend its win in the lower court. In this rare but not unprecedented situation, the justices usually ask a former law clerk to stand in for the government. The Court has tapped Nick Harper, an associate at Gibson Dunn and former clerk to then-Judge Kavanaugh on the D.C. Circuit, Justice Kennedy, and Justice Barrett, to defend the judgment below. It appears to be Mr. Harper’s SCOTUS debut, so here’s wishing him the best of luck! 

Closing out the week is a case involving death and taxes, Connelly v. United States. Brothers Michael and Thomas Connelly were the sole shareholders of Crown C Corporation, a building-materials company in St. Louis, Missouri. The company took out $3.5 million life insurance policies for each brother so it could redeem the shares if either brother died. Michael died in 2013, and the company used life insurance proceeds to redeem his shares for $3 million. Michael’s son and Thomas, serving as executor of the estate, agreed upon this figure as part of an agreement resolving several estate matters. 

Uncle Sam's gotta get his cut.

The estate then filed a tax return reporting that Michael’s shares were worth $3 million. The IRS audited the return, finding that the shares were undervalued. It concluded that the $3 million in life insurance proceeds should have been included in Michael’s interest in Crown C. The IRS slapped the estate with $1 million in additional tax liability. The estate paid up and sued for a refund, which is what led to the case now before the Supreme Court. 

The question presented is whether the proceeds of a life insurance policy taken out by a closely held corporation to facilitate the redemption of the shareholder’s stock is a corporate asset when calculating the value of the shareholder’s shares for federal estate tax. 

The lower court agreed with the IRS’s view that a corporation’s fair market value includes life insurance proceeds that are intended for stock redemption. The proceeds were “simply an asset that increased shareholders’ equity” and not a liability, despite a contractual obligation to redeem the shares, the court concluded. 

At the Supreme Court, Thomas (represented by SCOTUS Gentleman profilee Kannon Shanmugam) maintains that the value of Michael’s stock for estate-tax purposes is based on the willing-buyer/willing-seller test that assumes knowledge of relevant facts, including any limitations that would affect the property’s value. He claims the lower court erred by holding that Michael’s stock value incorporates the life insurance proceeds but not the offsetting obligation to redeem the shares.  

The IRS contends that the obligation to redeem Michael’s shares did not diminish their value, and based on IRS regulations, the fair market value was $5.3 million. The IRS is concerned about the possibility that no one will pay capital-gains tax on the “$2.3 million windfall” Thomas enjoyed. 

Because you know I’ll jump at any opportunity to mention a separation-of-powers issue: The U.S. Chamber of Commerce and NFIB Small Business Legal Center filed an amicus brief supporting Thomas, pointing out that the IRS is not entitled to deference on the meaning of its relevant regulations because it has flip-flopped on its interpretation, thus “depriv[ing] business owners of fair notice.”   

That’s all for now. I’ll be back later this week with argument highlights and other interesting SCOTUS tidbits from the week. 

Recapped: Social Media Cases get Spicy

A lot to recap this week (first and foremost, it was my birthday!). So I’m sparing you some witty intro so we can get right into it.

How dare you.

Arguments went surprisingly unwell for the plaintiffs in Murthy v. Missouri, though they went somewhat better for the National Rifle Association in NRA v. Vullo. Both cases involved allegations that the government was trying to coerce private actors into doing their unconstitutional bidding (aka jawboning). In Murthy, the plaintiffs had alleged that the government was, ahem, nudging social media companies into deplatforming certain speakers based on those posters' beliefs about Covid. In Vullo, the NRA alleged the head of the New York’s Department of Financial Services had encouraged banks and insurance companies not to do business with the NRA based on its pro-gun rights stance. The thrust of both cases is that government can’t engage in viewpoint discrimination, so it also can’t use its coercive power to get private parties to do the discriminating on its behalf.

In both cases, the government argued that it may exercise its own right to speak by “informing, persuading, or criticizing private speakers.” Sure, sure, sure. Fine. Whatever. The question is, when does that “persuading” cross the line into unconstitutional manhandling? It’s a fine line, my friends. Especially given the amount of laws on the books and ability of regulatory bodies to threaten a denial of a permit, penalties, fees, or even an investigation (which, even if eventually dropped, can cost a substantial amount of money and reputational harm).

The government contends it speech crosses the line only if, viewed objectively, it conveys a threat of government action, and there was no threat here. It wants to be able to “inform” government parties of “misinformation,” or “malign foreign interests,” or what have you, and it fears that if the test is too strict, it won’t even be able to send letters or have meetings saying “this is what we saw on your platform, do with it what you will.”

The jawbone's connected to the coercion bone.

In addition to saying it was just exercising its own speech rights, the government argued that the parties were trying to “us[e] Article III courts to audit government communications with social media platforms.” It’s a tired argument. Anytime people want to enforce the Constitution, government makes it out to be some nefarious interference with its behavior. Making a case that the government violated the Constitution isn't a policy dispute, it's a legal one. And we'd all be better off if we realized that judges exist exactly to adjudicate these kinds of controversies.

Of course, the government also made a standing argument. In Murthy, the government claimed that the plaintiffs hadn’t shown that the government was going to get a platform to censor their speech in particular, or that the government was the primary motivating factor in the platforms’ decisions. Many of the justices actually seemed to view this standing argument as too strict, which was a welcome surprise (usually courts are all to keen to punt).

For good measure, the government also threw in a national security reference: accepting the plaintiffs’ arguments, it claimed, would hamper “FBI agents trying to protect the nation from foreign threats.” Hey, scare tactics work!

After confessing to having seen or heard or even been a part of similar efforts while working for the government, Justices Kavanaugh and Kagan expressed concern that the plaintiffs’ proposed test would hamper legitimate governmental efforts to inform private parties about untruthful op-eds or security threats. This perspective will undoubtedly be persuasive with the other justices; none of them are going to overturn a practice that Justice Kagan said happens and has been happening "10,000 times a day" at DOJ.

Justice Sotomayor also seemed skeptical of the plaintiffs, saying she had “such a problem” with their brief. She seemed to think the plaintiffs’ briefs weren’t entirely truthful in their characterization of the social media companies’ conduct or the timeline of events. And many justices seemed confused about the plaintiffs’ proposed test for determining coercion.

Justice Alito, for his part, seemed just the opposite: he was concerned that this behavior would spread from social media platforms to traditional news. What would we say, he asked, if the government was getting cozy with journalists and giving them lists of things to take down or people to deplatform? Is it really okay even for the government to say things like “we’re partners,” or “we’re on the same team?”

The government resorted to pathos, saying that a ruling for the plaintiffs would prevent it from doing things like “call[ing] on colleges and universities to do more about anti-Semitic hate speech on campus,” after October 7th, or “encourag[ing] parents to monitor their children's cell phone usage.” My own (evergreen) response is why doesn’t the government just do less? We don't need you to do any of these things. We need you to just let us live our lives.

The attorney in Vullo seemed to have an easier time, first because there was more obvious evidence that the government had outright targeted NRA for the sake of burying it (one official had tweeted, for example, “#BankrupttheNRA”) and, second, because the government was more clearly outright threatening businesses with potential punishment. On the whole, then, the Court seems sensitive to the problem of jawboning but also sensitive to the government’s desire to engage with private parties about what it perceives to be misinformation.

I'm only SUGGESTING you wish me a happy birthday.

The other big argument of the week was Gonzalez v. Trevino, involving a 72 year old city council member’s allegation that the mayor and others’ weaponized an evidence tampering statute against her to neutralize her and her political opposition. Usually, probable cause is sufficient to defeat a retaliatory arrest claim. But under Nieves v. Bartlett, a person can demonstrate retaliatory arrest even in the face of probable cause by demonstrating that he or she was arrested when others similarly situated were not. The question in Trevino is what kind of evidence plaintiffs can introduce to meet that standard. The Fifth Circuit interpreted it strictly, essentially requiring concrete examples of arrests that never happened under the exact same circumstances (prove a negative, people! Should be easy). But the plaintiff (and the U.S. government arguing as amicus curiae) think at the very least, people should be able to introduce other evidence tending to show that the arrest was an outlier.

Arguing for the government, SCOTUS superstar Lisa Blatt argued that the plaintiffs’ proposed standard would allow judges to start second guessing law enforcement, and that people who steal, commit domestic violence, or engage in other serious crimes are going to be able to make excuses for their arrests. At one point, she said that under the plaintiff's standard for retaliatory arrest, she would “advise every criminal to put a... political bumper sticker on their car.”

Her emphasis on serious crimes seemed to underscore that the only reason we care about the false arrest in this case is because the underlying “crime” is so silly: the councilwoman had put some documents into her folder and the city council used a pedantic reading of an infrequently used law to charge her with evidence tampering. In other words, part of the problem here is the proliferation of crimes: it makes it easy for officials to weaponize laws, and to do so for pretty benign behavior. But that’s not so much a problem with the retaliatory arrest standard as it is with the underlying substantive criminal law. We don't want to make retaliatory arrest claims too easy to make just because the underlying laws are silly.

However, we also don't want to veer too far in the other direction and effecitvely nullify the First Amendment. At one point Justice Kagan asked a hypothetical about a video being found that shows city officials deliberately targeting someone for their viewpoint. If Blatt’s test can’t accommodate that, then there’s something wrong with her test.

Justice Kagan’s hypothetical led to this interchange.

I found it amusing because it shows three dynamics that are always true at the Court: 1) Justice Kagan is the hypothetical queen, 2) Justice Gorsuch hates when people fight hypotheticals, and 3) Lisa Blatt is fiery.

Later, Justice Alito remarked:

So true, Justice Alito. So true.

Last, I found the rebuttal by Gonzalez's attorney very nicely done.