Big decisions from SCOTUS

Important rulings are on the way. Here’s what to expect from the Supreme Court by the end of June. As I do every year, I’ll post the results as the justices roll them out.

1. The Power of Federal Agencies (The Chevron Doctrine)

This will be a major ruling. The case is Loper Bright Enterprises v. Raimondo, where fishing companies in New Jersey and Rhode Island are challenging a rule, issued by the federal agency National Marine Fisheries Service, that requires the herring industry to bear the costs of observers on fishing boats, so as to reduce over-fishing. The fishing companies want the court (a) to overturn these observer fee policies set forward by the NMFS, and (b) to overturn the Chevron doctrine altogether. If Chevron is overturned, the repercussions will extend well beyond fishing interests.

The Chevron doctrine is a foundational precedent that gives power to government agencies. It was decided in Chevron v. Natural Resources Defense Council (1984), and states that courts must defer to agencies’ interpretations of ambiguous statutes. The fishing companies argue that the Chevron doctrine undermines the duty of courts to say what the law is. After all, according to the Chevron doctrine, even if all nine Supreme Court justices agree that the fishing companies’ interpretation of federal fishing law is better than the NMFS’s interpretation, they would still be required to defer to the agency’s interpretation as long as it was reasonable, and that’s not consistent with the rule of law.

It seems likely that Chevron will be overturned, and if this happens, it will impact regulations on the environment, health care, consumer safety, nuclear energy, government benefit programs and guns. It would shift power from agencies back to Congress and the judiciary as it was in the past (pre-1984). It’s a tough question for me, and interestingly, citizens who have been polled are almost evenly divided on the question: 51% of Americans believe that Chevron should not be overturned — that courts should indeed defer to administrative agencies when laws are unclear. 49% believe that Chevron should be overturned; that courts should not defer to agencies.

Strong cases can be made either way, and the two best justices on the court — Neil Gorsuch and Elena Kagan — did that in oral arguments. Kagan said that federal agencies, with their scientific and technical expertise, are better suited than courts to resolve ambiguities in a federal statute, and so Chevron should stand. For example, if there were a bill to regulate artificial intelligence, you would want people “who actually know about AI and are accountable to the political process to make decisions” about artificial intelligence. The courts, said Kagan, “don’t even know what the questions are about AI,” let alone the answers.

Gorsuch, on the other hand, has been saying that Chevron should be overturned since he was a circuit court judge. In oral arguments for this case, he stressed that less powerful people are often adversely affected by the actions of federal agencies — like immigrants, veterans seeking benefits, and Social Security claimants. In those cases Chevron almost always works for the agencies against the little guy, and there’s no room for the little guy to appeal because the courts aren’t even allowed to do their job, given that Chevron says the federal agency has the final say.

I honestly don’t know what the correct ruling is here. I like the idea of deferring to those with expertise, but I don’t like the fact that those with expertise often shaft people with no recourse for them under the rule of law. Kagan and Gorsuch are equally compelling in my view.

2. Emergency Abortion Care

This is the first time the Supreme Court is getting involved in a state law criminalizing abortion since it overturned Roe v. Wade, and the ruling could affect more than a dozen states that have passed near-total bans on abortion. The case in question is Moyle v. United States, and it involves Idaho’s strict abortion ban which is in conflict with a 1986 federal law that ensures patients can receive emergency care. Biden’s administration sued Idaho over the ban, which has only a narrow exception permitting an abortion to save the woman’s life. (Pregnant women can experience a range of emergency medical conditions for which abortion might be the necessary stabilizing treatment, including pre-term premature rupture of membranes, where the patient’s amniotic sac ruptures before fetal viability; miscarriage; excessive bleeding which can arise as a result of placenta accreta spectrum, where all or part of the placenta abnormally attaches to the uterine wall; placenta previa, where the placenta partially or completely covers the cervix; and placental abruption, when the placenta separates from the inner wall of the uterus; etc. Pregnant women may also need emergency abortion care for conditions unrelated to the pregnancy itself, for example, if they were in a car accident.)

A lower court ruled that the Emergency Medical Treatment and Labor Act (EMTALA) supersedes the state’s abortion law when the two conflict. The Idaho officials appealed, and the justices appear split. Some of them are concerned about what protections federal law extends to unborn children and whether Congress clearly indicated that EMTALA can mandate abortion in certain emergency cases.

EMTALA ensures that patients have access to stabilizing care in emergency situations, including where the patient’s life is at risk or where there is a threat of serious harm to their health. Idaho’s abortion ban conflicts with EMTALA because it does not allow for abortion care for a wide range of life-and health-threatening circumstances pregnant women can be experiencing when seeking care at an emergency room.

Especially noteworthy is that two justices suggested that states may be able to avoid the preemption of federal law through state criminal law. Clarence Thomas and Samuel Alito of course. They are both dubious that the federal government’s Spending Clause power, which gives Congress the authority to require states to meet certain conditions to receive federal funds, could preempt a state criminal law. But the Supreme Court has never before made this distinction. If Thomas’ and Alito’s theory were embraced, then we could see more states turning to criminal law in order to trump any federal law.

3. Abortion pill access

The case is Food and Drug Administration v. Alliance for Hippocratic Medicine, and involves restrictions in access to the abortion pill. In oral arguments most of the justices seemed resistant to limiting access, since the anti-abortion groups who are challenging the drug (called mifepristone) don’t have the legal standing to bring the case. The two exceptions (of course, again) being Thomas and Alito, who seem very eager to limit the availability of the pill.

4. Social media and government officials

The case is Murthy v. Missouri. The court must decide at what point government efforts to limit the spread of misinformation amount to censorship of constitutionally protected speech. In this case the federal government was pressuring social media companies to censor conservative views (anti-vaccine content) and criticism of the Biden administration. For me it’s a no-brainer. If public officials are acting in a governmental capacity when pressuring (“requesting”) social media platforms to censor content, there are violating the First Amendment, pure and simple. It amounts to coercion.

5. Social media content moderation

There are two cases here: Moody v. NetChoice, and NetChoice v. Paxton. The two states in question are Florida and Texas, each of which has Republican-backed laws that constrain the ability of social media companies to curb content on their platforms. The Supreme Court must decide whether the governments of Florida and Texas may prohibit large social media companies from censoring posts.

I’m divided over this one. On the one hand, the First Amendment prevents governments from telling private companies how to censor and disseminate speech on their own property and platforms. So traditionally speaking, Florida and Texas have it backwards. On the other hand, the idea that big-tech companies are equivalent to just “any business” is impossible to take seriously and that’s why it’s been an issue.

The simple reality is that companies like Facebook and Twitter and Youtube exercise more power and control over public discourse than any government ever dreamed of having. I would defend a baker’s right to refuse to create or design a cake in a particular way without reservation, but I have mixed feelings about big tech companies censoring or deplatforming those whose views they object to. So I’m at least sympathetic to what the governments of Florida and Texas are trying to do by reigning in big-tech censorship.

My position is essentially this: I do support the right of big tech to censor and deplatform if they would start being treated consistently as editorial sites, and thus held liable for what is posted on their platforms.

Owners of editorial sites exercise discretion about what is published on their sites. If the material doesn’t meet their editorial standards, then it gets censored, and if it does meet their standards, then it gets posted, but the owner is therefore liable for what is allowed to be posted — for any defamation, use of copyright without permission, etc. Owners of neutral platforms (like phone lines) don’t have to worry about such liabilities. A phone company can’t be sued when its customers say illegal things on the phone, or coordinate illegal activity on the phone, because they’re a neutral platform.

Thus the problem: Facebook, Twitter, and Youtube have been treated legally as neutral platforms (like a phone line) — so they’re not responsible for what people say and post — while being allowed to function as editorial sites — so they can step in to edit or remove what people say on their platforms, or kick them off. That’s having their cake and eating it. If they want the prerogative to censor and deplatform as private businesses, then fine, I’m on board with that, but only if they agree to be stripped of their legal immunities. They shouldn’t be able to have it both ways.

That’s the solution to the problem of big-tech CEOs who have too much power silencing people. Not to advocate that the power be transferred to the government, but to simply hold these CEOS to the standards of their practice. If CEOs are willing to play fair ball like this, then I would rule against the government attempts of Florida and Texas to tell social media companies that they can’t censor. But if CEOs insist on having their cake and eating it, then no, they have IMO relinquished their private-business right to censor and deplatform people.

6. Racial Gerrymandering

In Alexander v. South Carolina State Conference of the N.A.A.C.P.:, the electoral map in South Carolina is in dispute. After the 2020 Census, the Republican-controlled legislature adopted a new congressional map that moved tens of thousands of black voters to a different district, effectively making the district a safe seat for Republicans. The South Carolina State Conference of the NAACP sued, and a three-judge panel ruled that the district was an unconstitutional racial gerrymander. The legislators then appealed to the Supreme Court, arguing that the map was actually a political gerrymander (which is permissible) which simply had a racial effect.

(If you’re wondering why political gerrymanders are permissible, it’s thanks to the Supreme Court decision Rucho v. Common Cause (2019), in which the court ruled that it doesn’t have the authority to resolve partisan gerrymandering claims. I believed, and still believe, that was a bad ruling. Not only does it allow states to blatantly gerrymander their congressional maps to favor one party over another, it was an abdication of responsibility on the part of the majority of justices who dodged the question.)

In any case, the South Carolina State Conference of the NAACP is absolutely in the right, and Thomas Alexander (president of the South Carolina Senate) dead wrong. This is a case of racial gerrymandering, pure and simple, thoroughly unconstitutional, and I hope that’s what the court rules.

7. NRA free speech

In National Rifle Association of America v. Vullo, the lovely NRA is claiming that a New York state official violated its free speech rights by coercing banks and insurers to cut ties with it after the 2018 school shooting in Parkland, Florida (which killed 17 people). The justices therefore need to rule on the fine line between permissible governmental advocacy and unlawful governmental coercion.

Even if you don’t like the NRA, you should support them in this case, because it’s about securing basic First Amendment rights for ALL advocacy organizations. If the state of New York State is allowed to blacklist the NRA, then there’s nothing to stop the government of Oklahoma, for example, from penalizing criminal justice reformers who advocate for bail reform. There’s nothing to stop the government of Texas from going after climate change organizations. Etc.

8. Domestic violence gun curbs

A federal law makes it a crime for people under domestic violence restraining orders to have guns, and in United States v. Rahimi, the law is being challenged for supposedly violating the Second Amendment. The challenge was filed by a Texas man charged with illegal gun possession while under a restraining order from assaulting his girlfriend. Thankfully most of the justices seem inclined to uphold the law.

9. Homeless encampments (Cruel and Unusual Punishment?)

It may sound far-fetched. In City of Grants Pass v. Johnson, the question is the legality of local laws used against people who camp on public streets and parks. The case arose in Grants Pass, Oregon, and a lower court ruled that the ordinances — which make it illegal to camp on sidewalks, streets, parks or other public places — violate the Constitution’s Eighth Amendment prohibition against “cruel and unusual” punishment.

Again, that may sound silly, but the homeless plaintiffs are resting their case on a 1962 decision, Robinson v. California, in which the Supreme Court ruled that laws criminalizing a person for being addicted to narcotics violated the Eighth Amendment. The plaintiffs argue that homelessness, like drug addiction, is a state of being that cannot be punished. Also, in 2018, an appeals court ruled in Martin v. Boise that Boise, Idaho, had infringed on the constitutional rights of homeless people by making it a crime to sleep outside, even when they had nowhere else to go. There’s a serious rethinking about how far cities can go in order to clear homeless people from streets and other public spaces.

10. Cross-State Air Pollution

In Ohio v. Environmental Protection Agency, the court will decide whether to temporarily stop the Biden administration’s “good neighbor” plan, which requires factories and power plants in Western and Midwestern states to cut air pollution that drifts into Eastern states. What happens is that winds carry emissions of nitrogen oxide toward eastern states, and the pollutant is linked to asthma, lung disease and premature death. There is precedent for this kind of ruling: the court ruled in Environmental Protection Agency v. EME Homer City Generation (2014) that an E.P.A. regulation intended to curb cross-state pollution was permissible.

11. Obstruction Charges for the Jan. 6 Assault

In Fischer v. United States The court will decide whether a man named Joseph Fischer, who was involved in the Capitol attack, can be charged with obstructing an official proceeding — congressional certification of the 2020 election results. The case has potential implications for Trump (on which see below) because he faces the same charge in the election subversion case. During oral argumentation, the conservative justices seemed skeptical that a federal obstruction statute could be used to charge rioters involved in January 6.

12. Trump, Part 1: Ballot Disqualification

The case of Trump v. Anderson has already been decided. On March 4 the court barred states from disqualifying candidates for federal office because of insurrectionist charges. The Colorado court had found that Trump took part in an insurrection for inciting and supporting the Jan. 6, 2021, attack on the U.S. Capitol by his supporters, and so they kicked him off the state’s Republican primary ballot, appealing to Section 3 of the 14th Amendment, which prohibits insurrectionists from holding office.

All nine justices unanimously overturned the Colorado court’s decision, saying that while states have the power to disqualify state officials under Section 3, they lack the authority to enforce Section 3 against federal officeholders and candidates. The Fourteenth Amendment only speaks to enforcement against federal candidates by Congress, and that cannot be read as silently granting enforcement power to the states.

It’s no surprise this was a slam dunk 9-0 ruling. Trump has the clear legal right to be on the ballot unless the federal government finds him guilty of insurrectionist behavior.

13. Trump, Part 2: Immunity for Former Presidents

In Trump v. United States, Trump claimed immunity from prosecution for trying to overturn the 2020 election results. (The court’s decision will determine if Trump will face trial for his attempts to overturn his 2020 loss at the polls.) Obviously Trump’s sweeping immunity claims amount to a contradiction of our separation of powers doctrine and would put the president effectively above the law. The question is the extent to which some official presidential acts might be protected from criminal prosecution. After all, if the president has to worry about facing criminal trial after leaving office for every controversial act he does as president, no one would want to be the president. This will be an interesting and important decision.

14. Trump, Part 3: “Trump Too Small” Trademark

Trump himself isn’t involved in this case. It’s Vidal v. Elster, and the background is thus: In 2018, Attorney Steve Elster attempted to register the phrase “TRUMP TOO SMALL” for use on T-shirts, intending the logo as a swipe and political commentary on Trump and his presidential policies. The Patent and Trademark Office examiner rejected the application, citing two sections of the Lanham Act, one of which prohibits registering a mark that identifies a living individual without their consent, and another which prohibits marks that falsely suggest a connection with living or dead persons. Elster appealed, arguing that the provisions infringed on his First Amendment rights and were not narrowly tailored to serve a compelling government interest. The court should rule in favor of Elster. I can’t see it not doing so.

Follow up: See my predictions for these rulings.