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  • Writer's pictureAnastasia Boden

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, “” 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???).


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