Recapped: There were huge arguments last week but once again Trump controversy overshadows them all

I thought last week’s oral arguments were going to be overshadowed by the Court’s recent announcement that it would hear a case involving the scope of former President Trump’s immunity.

But then yesterday, the Court dropped its decision in Trump v. Anderson.

Never a dull moment at SCOTUS (or in Trump Land), is there?

Yesterday morning the Court overturned the Colorado Supreme Court and ruled that Donald Trump is (for now) eligible to run for president, whatever his behavior on January 6th. The outcome is not entirely surprising; at oral argument, all of the justices seemed uncomfortable with the prospect of allowing state officials to take a presidential frontrunner off of the ballot, with huge consequences for the entire nation. Most people knew which way the case would go; they just didn’t know which of Trump’s many legal theories the Court would accept.

A five justice majority wound up ruling that while states can disqualify candidates for state office under Section 3 of the Fourteenth Amendment, they may not disqualify candidates for federal office. That seems reasonable enough and is defensible. But then the Court went further. The majority went on to say that the only party that can disqualify federal officers is Congress through implementing legislation, and that any such legislation must satisfy certain conditions. It therefore cut off other potential avenues for disqualification (namely, the courts). That was probably exactly the majority’s intention: at least five justices wanted to not only back out of this dispute, but any future disputes involving whether someone running for office had engaged in “insurrection.”

The last part of the Court’s ruling was not necessary to resolve the case, leading four justices to write separately to say so. Justice Amy Coney Barrett chastised the Court for going further than necessary when a more narrow decision would’ve garnered the votes of all nine justices and allowed the Court to present a united front. Justices Sotomayor, Kagan, and Jackson wrote separately to say that the last part of the Court’s decision was not only unnecessary, but wrong. And I have to agree. It makes little sense to say Section 3 requires implementing legislation when Section 5 merely authorizes it, and most other constitutional provisions have been deemed self-executing. In creating what the concurrence called “a special rule for the insurrection disability in Section 3,” it kinda seems like the Court just didn’t want to deal with it. But dealing with these things is the Court’s job! And so the decision left me feeling like the Court had, once again, narrowed the scope of one of our most important constitutional amendments.

The Constitution: Deal with it.

Last week the Court heard several oral arguments worth recapping.

On Monday, the Court heard Moody v. Netchoice and Netchoice v. Paxton, (you can read Cato’s amicus briefs on the cases here), which involve the state’s ability to regulate speech in the name of free speech.

The Court heard almost four hours of oral argument (!!!). After the first case, which involved Florida’s law, it didn’t look good for those of us who think that the government has no interest in compelling or restricting speech in the name of freedom.

Many of the justices were preoccupied by the fact that the state had written an incredibly broad law, the scope of which wasn’t yet clear. Some justices thought there might be some permissible applications of the law and a facial challenge therefore had to fail. Perhaps, some justices opined, the law could be constitutionally applied to Google and could prohibit Gmail from restricting somebody’s access to their email account solely based on that person’s political views. That might restrict Google’s liberty, but it wouldn’t be a First Amendment problem.

In addition to a few of the originalist judges, Justice Ketanji Brown Jackson seemed sympathetic to this view, noting that “not much was clear” about this lawsuit.

Three responses:

1)      The fact that a law is unusually broad usually means it's more unconstitutional, not less.

2)      The state wrote the law; it’s in the best place to tell the Court how far it reaches. Moreover, as Justice Amy Coney Barret noted, if the state really thought there were so many permissible applications, one would think the state would’ve argued that throughout litigation. Yet the parties seemed to have assumed that the law applied to websites that host speech in the same way as Facebook and Twitter, and the state’s attorney did nothing to clear up the confusion about the law’s scope. Instead, he continued to be cagey, insisting it was the plaintiffs’ obligation to delineate the law’s boundaries rather than the government’s.

3)      Why do we care whether the right at issue restricts the right to free speech, or the right to contract, or the right to use your property, or the right to earn a living, or the right to associate, or the right to take people off of the platform you built for whatever reason you want? We care not because there’s any meaningful distinction between our liberties, but instead because the Court has arbitrarily given some of our liberties more protection than others. That’s a shame. Economic rights are fundamental to human flourishing and individual well-being. So even if the law restricted rights apart from First Amendment rights, those shouldn’t be given short shrift.

I’m old enough to remember when Conservatives thought forcing people to give up their property rights to let allow others to speak (a la Pruneyard v. Robins) was a bad thing.

It was refreshing to hear Justice Brett Kavanaugh reiterate throughout the argument that the Court has rejected the notion that the state may censor some speakers to elevate the voices of others, and that the First Amendment exists to restrict the government, not private actors.

Florida’s attorney, however, said that its law didn’t restrict speech at all because the statute regulates “conduct, not speech,” and the situation might be different if this was an expressive website that was committed to a certain viewpoint, like, say, “Democrats.com.” But Justice Elena Kagan asked why it makes any difference whether a website is overtly ideological or instead committed to culling out certain kinds of unwanted speech, like misinformation or hate speech.

By the second oral argument, things seemed to be back on track, in part because the Texas statute is more constitutionally suspect: it does not apply to websites like Gmail, therefore getting rid of the facial v. as applied problem, and it made various content-based exclusions (i.e. excluding websites related to sports and entertainment), which makes it especially unconstitutional.

Justice Neil Gorsuch asked about the intersection of Section 230 and Netchoice’s First Amendment claims: he noted that Section 230 says these platforms won’t be liable for other’s speech, but Netchoice is turning around and saying that when it moderates, it’s engaged in its own speech. Arguing for Netchoice, former Solicitor General and superstar advocate Paul Clement said it’s true as a matter of statutory construction that for purposes of Section 230, online platforms are hosting others’ speech. But that doesn’t mean that those same platforms can’t be speakers for First Amendment purposes.

Another big argument last week was Garland v. Cargill, in which the Court considered whether a bumpstock qualifies as a machinegun under federal law. (For those less versed with guns, a bumpstock is a device that allows users to convert a semiautomatic rifle so that it sprays hundreds of bullets with one pull of the trigger.)

Compare Justice Thomas’s gun knowledge with Justice Alito’s.

Federal law defines machinegun as a weapon that fires “automatically more than one shot… by a single function of the trigger.” The question is whether “function of the trigger” refers to the user or the weapon itself. Bumpstocks allow the gun to automatically fire hundreds of shots by one pull of the trigger, but the trigger actually resets and the hammer clicks again for every shot.

Formerly, ATF did not consider bumpstocks as machine guns, but after the horrific Las Vegas shooting in 2017, the Agency reconsidered the matter and issued an interpretative rule to the contrary. Now a gunshop owner has challenged the interpretation as contrary to the statute.

The ATF's flip-flopping seemed to bother Justices Gorsuch and Kavanaugh in particular, who noted that formerly law abiding citizens have been turned into criminals without any notice, especially given that the statute doesn’t require knowledge that one’s conduct is illegal, but instead simply requires knowledge of the facts that make the conduct illegal. In fact, according to the government, they can be held liable for owning bumpstocks anytime after the rule was issued, even if the Fifth Circuit has since said the rule was illegal. To this, the government responded that it is widely accepted that ignorance of the law is no excuse (ahem, unless you’re a government official claiming qualified immunity, but I’ll save that rant for another day). Moreover, he noted that the community involved is very aware of the debate and relevant laws and many members have in fact challenged ATF’s policy, so he thinks notice is probably more widespread than it is with regard to other laws. He added that various estoppel doctrines would prevent the government from prosecuting some of these people, and in practice, the government wouldn’t go after them for that (trust us, they say!).

Justice Gorsuch and others noted that people don’t “function a trigger,” which makes the government’s argument a bit awkward. But the government’s attorney, Deputy Solicitor General Brian Fletcher, said that Congress didn’t want to use the word "pull" because they anticipated there would be innovations in triggers, and in fact, members of Congress and even the NRA used the term “function” and “pull” interchangeably. What’s more, there are other weapons where the trigger doesn’t function by moving the hammer, so it makes more sense to think of “function” in terms of the initial action. The question, Fletcher said, is “are you able to fire multiple shots without multiple manual movements?”

Several justices seemed to be concerned about the possibility of evading the statute if they were to accept Cargill's interpretation. Cargill’s attorney didn’t have a good response to that except to say “this is the statute we’re stuck with.” Usually I might agree, but what about when the statute is legitimately ambiguous, the plaintiff’s interpretation would allow people to totally evade the purposes of the statute, and the risks are another Las Vegas style shooting? After all, bumpstocks fire at rates much higher than semiautomatic weapons (400-800 v. 60-80)—closer to military grade weapons (700-850 rounds a minute).

Evading the purposes of the statute seemed to be especially concerning to Justice Jackson, the Court’s purposivist-in-chief. But she also believed that the government’s interpretation could be easily squared with the wording of the statute, since the “function of the trigger” could be interpreted as “what the trigger achieves.”

There was a dizzying array of hypotheticals thrown at the attorneys, including questions about a potential weapon in the form of a box with a button on top, a box with two buttons on top, and the like. I can see the government counting to 5 on this one, thanks largely to a fantastic argument by the Department of Justice.

The final oral argument worth noting from last week was Coinbase v. Suski, during which one of the attorneys “gave away [the] case.” The lawsuit is a dispute about whether an arbitration agreement delegates the duty of resolving whether any particular dispute falls within the arbitrator’s purview to the arbitrator or to a judge. Coinbase believes its user agreement resolves the question, since it explicitly delegates that duty to an arbitrator. But the plaintiffs point to special rules issued during a sweepstakes, which chose California courts as the venue for any litigation.

Justice Kavanaugh noted that the Ninth Circuit never seemed to resolve whether the sweepstakes rules superseded the original agreement as a matter of state contract law. After both attorneys agreed, the justices seemed to believe there was nothing left to do but remand.

The words of lawyer nightmares.

It was a big week, but there are more exciting things to come for the Court. And stay tuned: shortly we’ll be posting another Interview with a SCOTUS Lady (or maybe SCOTUS Gentleman???).

Keeping up with the Court: 2/26/24

Did anyone else notice how many times Cato’s amicus briefs have been mentioned lately at SCOTUS? Asking for a friend…

What’s happening at the Court this week? A lot!

Monday

On Monday, the Court will hear Moody v. Netchoice and Netchoice v. Paxton, two highly anticipated cases coming out of Florida and Texas involving the government's attempt to dictate what speech social media companies allow on their platforms. The states are imposing these mandates, ironically, in the name of free speech.

It's a black fly infringement of liberty in your free speech chardonnay

Based on their perception that social media companies are de-platforming primarily conservative speech, Florida and Texas recently passed laws regulating these companies ability to moderate the content that's put up on their sites. Texas’s law, for example, prohibits social media companies from taking down any content based on its viewpoint. Florida’s law bars social media companies from “deplatforming” political candidates under any circumstances, prioritizing or deprioritizing (also known as shadow-banning) any post or message “by or about” a candidate, and removing anything posted by a "journalistic enterprise" based on its content. It also contains various disclosure provisions, including a requirement that companies disclose their reasoning any time they make certain moderation decisions.

The Fifth Circuit upheld Texas’s law because, in its view, companies do not have a “First Amendment right to censor what people say.” The Eleventh Circuit, by contrast, struck down Florida’s law under the First Amendment. And now the Supreme Court will resolve the split.

The case has far reaching implications, since the law is based at least in part on the idea that social companies have accumulated “monopoly power” that justifies regulation. If that theory is accepted, all sorts of new regulations could be passed when companies become, in the government’s view, too big or too powerful. Thus, the lawsuit has created something of a schism in conservative and libertarian circles, since it invites regulation that would nomrally be opposed by opponents of big government. You can see my colleague Clark Neily debate the inimitable "firehose of ideas" Richard Epstein on the topic at this year's Federalist Society National Lawyers Convention here.

I live in California, which has recently attempted to make social media companies engage in more content moderation, rather than less. It is therefore the inverse of Florida and Texas; it wants companies to take down more people's posts. This fact perfectly illustrates the problem: when you allow the government to dictate speech, it’s not always going to do the kind of dictating that you like.

Full disclosure/shameless plug: Cato submitted an amicus brief in these cases urging the Court to reverse the Fifth Circuit’s opinion. The brief largely discusses the problems of Pruneyard Shopping Center v. Robins, which ruled that states could require shopping mallsa and other public entitites to host other people's speech. In our view, the Court should walk back Pruneyard rather than expand it to new contexts. Whether viewed as a matter of First Amendment rights or property rights, private businesses have an interest in deciding what type of speech they host (the same way that you and I have an interest in deciding who comes to our dinner party or kicking them out if they say something we don't want to tolerate).

Another interesting amicus brief was submitted by employees actually tasked with making content moderation decisions. As they explain in their brief, they often take down some pretty heinous posts, including death threats aimed at the justices themselves. If Florida's and Texas's laws are upheld, they won't be able to do that. They also note that in many cases, free expression requires heavy moderation so that SPAMmers, trolls, and others are weeded out and others can be functionally heard. It's particularly clever since it not only uses real examples from Twitter and other websites to demonstrate the value of moderation, it uses tweets directed specifically at the Court.

In FL's or TX's world, moderators could not take this comment down.

Tuesday

On Tuesday the Court will hear McIntosh v. United States and Cantero v. Bank of America.

McIntosh concerns the government's perpetual abuse of rules during litigation. While McIntosh was being prosecuted for robbery, the government made vague allusions to forfeiture but never actually pursued it. In fact, the first McIntosh ever heard anything about forfeiture was at sentencing. Just as the district court was about to sentence him, the government informed the district court that, in addition to a $75,000 restitution order, it was asking for a $75,000 forfeiture money judgment as well as forfeiture of McIntosh's BMW, which was allegedly purchased with proceeds from a prior robbery.

The district court then ordered the government to submit a forfeiture order within a week, but it never did so. McIntosh argued that the government therefore lost its right to seek forfeiture because it failed to timely comply with Rule 32.2, which lays out the required notice for forfeiture. The government's mistake, he said, cost him thousands, because the car's value (which was to be credited against any monetary judgment) had continuously eroded over the years. The district court and court of appeals disagreed, calling the rule a mere “time related directive,” meaning it was a rule that could be violated without consequence (not really much of a rule, amirite?)

This is (yet another) one of those cases where one imagines that if was one of us mere civilians breaking the rules rather than the government, we’d pay dearly. But when it’s the government who breaks the rule, they try to say the rule was just a suggestion.

After McIntosh, the government will consider whether the National Bank Act preempts a state law requiring mortgage lenders to offer a minimum interest rate on escrow accounts, such that the law cannot be applied to national banks. Despite all of the possible analogies to Marbury v. Madison, I’m going to leave it at that.

Wednesday

Wednesday morning the Court will hear Garland v. Cargill, which asks whether a bump stock device is a “machine gun” under federal law.

Since 1986, Congress has prohibited the transfer or possession of any new “machinegun,” which the National Firearms Act defines as any weapon which "shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” But in addition to weapons themselves, the statute also includes “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun.”

For some context: a “bump stock” allows users to alter their guns so that they spit out hundreds of shots per minute. After the horrific mass shooting in Las Vegas was carried out using bump stocks, the Bureau of Alcohol, Tobacco, Firearms and Explosives deviated from its prior rules interpreted the relevant statute as encompassing bump stocks. The Fifth Circuit held that the statutory definition of “machinegun” does not include bump stocks, and so the ATF's rule was invalid. But there's a circuit split on the issue, and now the Court has agreed to resolve it.

That argument will be followed by Coinbase, Inc. v. Suski, which is back at the Court for a second time. In Coinbase, Inc. v. Bielski, the Supreme Court ruled that a district court must stay its proceedings while a party is appealling a denial of a motion to compel arbitration. Suski involves the appeal referenced in that case. And it asks whether, when parties enter into an arbitration agreement with a delegation clause that delegates certain decisions to an arbitrator, an arbitrator or a court is the proper party to decide whether that arbitration agreement is narrowed by a later contract.

Looking forward to seeing the Court discuss Dogecoin, the digital currency that started the whole case.

I'll be back at the end of the week with a recap of the arguments, per usual. In the meanwhile, enoy this article summarizing some recent remarks about collegiality from two very important SCOTUS ladies you may have heard of before....

Recapped: Truckers, Truck Stops, and Hunting Dogs

It’s been a busy few days at the Supreme Court. On Tuesday, the justices issued an orders list that included the denial of cert in Coalition for TJ v. Fairfax County School Board, a Pacific Legal Foundation case concerning the use of racial proxies in K-12 school admissions. The sting of this denial was lessened (a bit) by a fiery dissent from denial of cert (aka dissental) written by Justice Samuel Alito and joined by Justice Clarence Thomas. Justice Alito wrote that the lower court’s decision is based on "a patently incorrect and dangerous understanding of what a plaintiff must show to prove intentional race discrimination." He charged that this reasoning is "a virus that may spread if not promptly eliminated."

Justice Alito writing his dissental.

The Court also announced decisions in two cases: McElrath v. Georgia and Great Lakes Insurance SE v. Raiders Retreat Realty Co. 

With Justice Ketanji Brown Jackson writing in McElrath, the unanimous Court held that the jury verdict that McElrath was not guilty of murder by reason of insanity was an acquittal for purposes of the Double Jeopardy Clause, notwithstanding any inconsistency with the jury’s other verdicts. Justice Alito wrote a concurrence, noting that "[b]ecause the Constitution does not permit appellate review of an acquittal, the State Supreme Court’s decision must be reversed." He clarified that this case is "different from [one] in which a trial judge refuses to accept inconsistent verdicts and thus sends the jury back to deliberate further. Some States follow this practice, and our decision does not address it."

Justice Brett Kavanaugh wrote for the unanimous Court in Great Lakes Realty, holding that choice-of-law provisions in maritime contracts are presumptively enforceable under federal maritime law, with narrow exceptions. Justice Thomas concurred, putting the SCOTUS bar on notice that the Court has "retreated from … the unsound holding" of a 1955 case the respondent (the losing side) relied on to argue that state law governs these contracts. 

The justices also heard oral arguments in four cases. Here are the highlights. 

Tuesday

The justices kicked off the day with Corner Post, Inc v. Board of Governors of the Federal Reserve System, which looks at when the six-year statute of limitations, 28 U.S.C. § 2401(a), for APA challenges to final agency action begins to run: when the rule becomes final or when it actually has harmed the plaintiff. 

You can read about the background of the case here, but in brief, Corner Post brought an APA challenge to a rule in 2018 that the Fed adopted in 2011. Corner Post didn’t open its doors until 2017, so it couldn’t challenge the rule during the first six years it was in effect. The Fed argues that Corner Post is out of luck because the statute of limitations has run. Corner Post says the clock began to run from the date it was injured, which was not until 2017 so its challenge is timely. 

Bryan Weir of Consovoy McCarthy made his SCOTUS debut representing Corner Post, the North Dakota convenience store and truck stop (that I hear has great fried chicken). Benjamin Snyder, assistant to the Solicitor General, argued on behalf of the Fed’s Board of Governors.  

Right out of the gate, Justice Thomas wanted to know if there are other cases with a similar fact pattern. Weir pointed out those are in short supply since only one court has adopted Corner Post’s reading of § 2401(a). He explained that even the government agrees that this is a "relatively uncommon" situation and that a regulated entity would normally be injured when a rule goes into effect. But Justice Elena Kagan saw this as an opportunity for open-ended challenges to old agency rules. 

Weir replied that if that were the case, there would have been a flurry of challenges to old rules in the circuit that adopted the same reading of § 2401 as Corner Post. But that "just didn’t happen. There was no uptick." 

Justice Sonia Sotomayor suggested that when businesses open up, they’re accepting the regulatory landscape that’s in place.

Weir answered that the Court has recognized that’s "a tall task to ask of any small business owner" but in any event, the first time Corner Post was injured (and as a result, when its cause of action accrued) was when "it swiped its first debit card and paid its first fee." 

Justice Jackson asked if Corner Post was reading more into the statute than was there.

Weir responded that’s how the statute reads, and that since §2401(a) applies not just to APA claims but to other civil actions against the government, the government’s view wouldn’t make sense.  

Justice Alito asked why "late-arising objectors" like Corner Post couldn’t just petition the agency for a new rulemaking to get relief. That’s not a substitute for judicial review, Weir explained, and it puts the government in the driver’s seat. "The government gets to decide when it rules … and it can sit on it for years," Weir argued. Then if a petition is denied, the agency’s decision gets very deferential review by courts. 

The biggest takeaway from the argument is that Justice Jackson maybe sorta gave away the outcome of the Loper Bright and Relentless cases seeking to overturn Chevron. Check this out:

"We had other doctrines." Volokh Conspirator Jonathan Adler had a similar reaction. 

 When it was the government’s turn, Justice Thomas wanted to know when the government thinks Corner Post’s claim accrued. 

The government's answer left Justice Thomas scratching his head. "Is that normal… ?" And Snyder replied that it's unusual for other contexts but not for administrative law challenges. 

Chief Justice John Roberts wasn’t buying it. He pressed the government for any other way Corner Post could challenge this rule—not an enforcement, not a rule ("maybe they don’t want a rule. They want the government to stop what it’s doing to them")—"what else is there?" He continued, "You do have a specific injury inflicted by the government, the individual has standing, and your argument is, well, Congress doesn’t want people to sue, or somebody else had the chance to sue and you could have joined that trade association."

Justice Kavanaugh wanted to know about the real world implications. Snyder said, "it’s pretty hard to overstate the significance of allowing [these types of] challenges to be brought more than six years later." 

This had me thinking of agencies dusting off decades-old laws and discovering new, broad grants of authority (pouring new wine from old bottles), but I digress.

Justice Alito also brought up that Sec 2401(a) is a "very broad statute that applies to every civil action against the United States" and "you want us to say that the term 'accrue' means something different in different contexts … Have we ever said anything like that?"

Justice Amy Coney Barrett brought up the timing of Corner Post's injury and claim accrual.

Snyder replied that with pre-enforcement review, "a plaintiff can bring suit even if they are not yet subject to enforcement."

Several justices followed up with questions about what the necessary conditions would have been for Corner Post to challenge the rule (before it opened) and what would be necessary to show standing.

Next up was Bissonnette v. LePage Bakeries Park St., LLC. The Federal Arbitration Act (FAA) establishes a federal policy strongly favoring arbitration over litigation to resolve contract disputes, but it carves out an exception for employment contracts of seamen, railroad employees, and "any other class of workers engaged in foreign or interstate commerce." The question before the Court is whether someone must be employed in the "transportation industry" to come within the meaning of the "other class of workers" clause. 

Independent distributor/truck drivers for a bakery goods company argued they are exempt from arbitration because their work includes transporting these goods. Flowers Food, the bakery goods company, maintained that since they are in the bakery business, not the transportation business, the distributor/truck drivers aren’t exempt. 

Jennifer Bennett, the attorney for the distributor/truck drivers, pointed out that they are not seeking to dramatically expand the class of workers who are exempt from the FAA. Truckers have substantially replaced the railroad employees of yore. "[W]e're not making the exemption broader. We're just taking the people who would have been railroad employees, and now they're truck drivers." Some businesses "use companies like FedEx, and some companies do what Flowers did, which is essentially bring a trucking company in-house themselves. There's no reason that those workers should be treated any differently."

Justice Kavanaugh asked Bennett how they should interpret the "other class of workers" language. What connects seamen, railroad employees, and other workers? Wasn’t it the case that when Congress passed the FAA in 1925, it wanted most workers to be subject to arbitration agreements, and the exemption was intended for industries that had existing arbitration regimes. In other words, “Congress was accommodating the future” when it included the “other workers” clause. 

Bennett replied that "even if this Court were going to try to discern some purpose of the exemption and instead of focusing specifically on the text" (shots fired at the "we're all textualists now" crowd) the assumption that "there was a mandatory arbitration scheme that covered seamen, and that's actually just … not correct." She said some could go straight to court, rather than arbitration. (The attorney for the other side later disputed this characterization).  

Later, Justice Kavanaugh said, "I think the number of workers who are going to be exempt and number of companies who are going to have to deal with this is massive if you lose."

The attorney for Flowers/LePage Bakeries, Traci Lovitt, agreed. She described how in recent years there have been "cases against Domino's franchisees, so you're bringing in every franchise restaurant … You're bringing in the medical industry … because they need to get their products very quickly from one place to another. You're bringing in basically the entire food industry, because … these point-to-sale shipments like breads, things that go bad, beer … that whole industry is now in … You're now bringing in every retail industry that is shipping their own—they have got, you know, warehouses going to brick and mortars." But the reason this wasn't a problem before is "because the background rule has been that it's the transportation industry."

Justice Alito asked if the lower court’s approach (read about it here) poses line drawing problems. Lovitt responded that it wouldn’t and that, "ninety-five percent of these cases, it's clear. The FedExes, the UPS, the Yellow Freights. It's very clear who's in the shipping industry because they're in the business of shipping other people's goods."

Justice Barrett asked if changes in the transportation industry have made the FAA’s exemption of seamen and railroad employees an anachronism. "And then wouldn’t it be for Congress to fix it?" Lovitt asserted that in 1925, the exemption "encompass[e]d the entirety of the transportation industry while anticipating that the industry was also evolving."

Wednesday

Everyone v. EPA! The justices heard oral arguments on four consolidated applications for stays of EPA's "Good Neighbor" rule. (More on that here.) As University of Texas law professor Steve Vladeck noted, this is only the third time since 1971 the Supreme Court has heard oral argument on an emergency application, so that might explain some of the justices' self-professed confusion over how to handle the matter. Four attorney—Mathura Sridharan for the state challengers, Cate Stetson for the industry challengers, Malcolm Stewart for the federal government, and Judith Vale for the states supporting EPA—appeared before the Court in this supersized oral argument.

A lot of the justices’ questions centered on why they needed to rule now. Justice Jackson asked Sridharan what the emergency was when the parties haven’t even briefed the case in the lower court. Sridharan said, "At the breakneck speed we're going, in order to … get into compliance with an unlawful federal rule, we are spending immense sums, both the states as well as our industries. And on top of that, we are facing the threat of power shortages and heating shortages."

Justice Jackson asked Stetson whether the parties sought expedited review in the D.C. Circuit. Stetson said, "[W]e did move for expedited briefing. We were not given the briefing schedule that we wished … After th[is] Court granted argument in late December, we asked for a delay in order to impose some order on the process between this Court and that court." 

Justice Barrett asked Stetson about the costs the industry challengers have incurred. "[P]art of your argument for emergency relief is the crushing costs and the risk of, you know, energy disruption, et cetera. What has been happening so far?" 

Stetson replied, "The industries that I represent have been incurring costs to try to start permitting, compliance, all sorts of issues involving the run-up to installation of these controls. But let me pause on this because I think it also responds to a question, Justice Kagan, that you asked, which is … we don't need to show in this posture cert worthiness. Nor do we need to show, Justice Jackson, you know, that this is an emergency. What we need to show is for a stay that we have a likelihood of success on the merits and irreparable harm." 

Following up on Justice Kagan’s earlier question about whether the likelihood that the Court would grant cert on the merits is part of the consideration at this stage, Justice Barrett asked Malcolm Stewart what the federal government’s position is on cert worthiness. Is that part of the Court’s assessment, and if so, is this case cert worthy? 

Stewart answered, "[I]t's our view that you should consider cert worthiness as—if likelihood of success means likelihood of success in this Court, then that has to be not just would the Court rule in their favor if it took the case but what's the chance that the Court would take the case." But at this stage it’s not cert worthy because "we don't know what the D.C. Circuit is going to do. It's certainly possible that the D.C. Circuit will issue a ruling for or against us that would raise issues of overarching importance, and so the cert calculus would—would change then."

There was also a lot of discussion of the reasonableness of the Good Neighbor rule given that twelve of the 23 states were not currently subject to it. Justice Sotomayor wanted to know how the eleven remaining states are harmed by the others not being subject to the rule, since "states are bound by the number that was calculated on the larger group." Here's more from Justice Sotomayor:

"If twelve are not paying it, what does it matter to you?" she asked. Stetson said, "that is the bug and not the feature of this plan … EPA looked at the aggregate costs of controls over … hundreds of [electric generating units] across all of the states, hundreds of industries, units across all of the states. It figured out what that aggregate cost was and then it decided to allocate obligations."  

Justice Kavanaugh followed up on this: "[T]o Justice Sotomayor's question, show us how it works. But that's … [EPA’s] burden, I think, to show—to justify—to not be arbitrary and capricious." But EPA's didn't have an explanation. It's a "goose egg." Stetson agree, "It is a goose egg."  

Later in the argument, the Chief tried to drill down with Stewart what the smallest number of states EPA could have implemented this plan for; what if it was just the smallest state of the 23? 

Stewart replied, "I don't think that they have any plan to do that."

Justice Alito asked if someone brought a motion for reconsideration by EPA, is there a deadline for EPA to respond? Stewart said no but "there is a mechanism for arguing that EPA has unreasonably … delayed." How reassuring.

Last but not least was Warner Chappell Music, Inc. v. Nealy.

The question is whether under the discovery accrual rule, a copyright plaintiff can recover damages for acts that occurred more than three years before the filing of a lawsuit. The Court phrased the question presented to avoid deciding when a copyright infringement claim accrue. (Under the discovery rule, claims accrue when the copyright owner knows or reasonably should have known about the infringement while under the injury rule, the claim accrues on the date of the infringement.) But that didn’t stop the justices from asking about it. 

Justice Thomas asked the first question: Did the lower court rule on the existence of the discovery rule? 

Representing alleged infringers Warner and Artist, Kannon Shanmugam replied that the lower court applied its own precedent. But the scope of the discovery rule "is to some extent intertwined with the substantive question that is presented here."

Justice Barrett jumped in: Hold on… "Mr. Shanmugam, we took it off the table, and your cert petition did not ask us to grant cert on the merits of the discovery rule."

The two went back and forth about whether a footnote in the cert petition was sufficient to present the issue. Justices Sotomayor and Jackson entered the fray. Ultimately, Shanmugam replied, "Once this Court rephrased the question presented, we abandoned any argument that there is no discovery rule. My point to this Court is simply that the scope of the discovery rule is relevant to this question."

This led Justice Alito to ask:

The two questions are (1) whether there is a discovery rule for when copyright infringement claims accrue; and (2) if there is, how does that affect relief? Alito suggested maybe they should dismiss the petition as improvidently granted, aka DIG it (can you dig it? IYKYK).

Justice Jackson asked where the statute says damages are limited. "I take it your position is you can't go back any more than three years, but I don't see that in the statute."

Shanmugam responded: “[W]hen it comes to retrospective relief, if the act took place more than three years earlier, the implication of the statutory language is you are out of luck. You cannot recover for retrospective relief. If you're bringing a claim for prospective relief, it will turn on whether there is a likelihood of future infringement.”

Justice Gorsuch wanted to know: “How do you get to this … a discovery rule, but it’s only a three-year discovery rule?”

Justice Jackson asked Joe Earnhardt, the attorney for the copyright plaintiff, about the possibility of a DIG.

He replied, "I think either path is viable … [but] I believe it would be helpful to the—to the bar to clarify that it's wrong, that there is no separate damages bar, and that would resolve the circuit split that currently exists."

Of the discovery rule, Earnhardt asserted, "[W]e don't have sort of a dog in the hunt … in this case about whether there is a discovery rule or not, but, for 40 years, the courts of appeals unanimously have found that there is one, and Congress during that time period has amended the Copyright Act 79 times, reasons big and small, and they've never stepped in to say that there's not one."

Justice Gorsuch followed up: "[Y]ou don’t have a dog in the hunt on whether there’s a discovery rule … then why are we here?"

Earnhardt explained, "All I mean by saying we don't have a dog in the hunt is we don't—we don't have that issue before us."

Speaking of a dog in the fight, or rather a dog I wanted to fight.

That's it for this week. I'll leave with you my favorite SCOTUS item of the week: Six of the eleven advocates this week were ladies. To quote Shania Twain, "Let's go girls."