SCOTUS Watch: Two Down

The Supreme Court set up three opinion days this week to handle around twelve cases (some cases involve the same general subject). They decided to hand down two today. The first:

the case about social media "jawboning" -- the government's communications with social media companies during the 2020 election season and COVID-19 pandemic. The court holds that the challengers -- two states and five social-media users -- do not have standing -- that is, a legal right to sue.

(SCOTUSBlog live blogging summary.) 

Justice Barrett wrote the opinion, which was expected by those who kept track of who wrote opinions from that argument cluster. A bit of inside baseball: the Supreme Court has monthly argument schedules. They generally evenly divide the opinions from each argument. Barrett, who already had fewer opinions than some justices, did not have an opinion from that set. Kavanaugh handled another standing case recently.

The general assumption was that the standing argument was weak. Justice Alito (back on the bench; Gorsuch was out) along with Thomas and Gorsuch though there was standing. They also saw this as a grave free speech issue. It comes off as some Fox News conspiracy.  

[Mark Joseph Stern has more.]

The government flags COVID lies, Facebook or Twitter takes them down, and it's "censorship."  As both liberal and conservative justices noted during oral argument, the government -- including press secretaries -- regularly references stories they deem unfair and so on. 

The open-ended nature of the claims, another Fifth Circuit special, made this an easy case. There is a point that even this Court will say "enough." Again, however, we should not be that impressed with minimal sanity. 

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The other case was another in a long line of cases (sometimes unanimously) where the Supreme Court applied corruption laws narrowly. SCOTUSBlog summarizes:

The court rules in Snyder v. United States, that federal bribery law does not make it a crime for state and local officials to accept gratuities that may be given as a token of appreciation after the official act. Federal law, the court writes, “leaves it to state and local governments to regulate gratuities to state and local officials.”

(The Supreme Court will then strike down these local regulations on other grounds, including First Amendment or due process.)  

Justice Gorsuch concurs again to toss in his now common comment how he is glad to join his fellow justices (or politely disagrees). He also says any "fair reader" would find the application by the federal government unreasonable. 

Jackson for her fellow liberals disagrees. Jackson summaries: 

involves one such person. James Snyder, a former Indiana mayor, was convicted by a jury of violating §666 after he steered more than $1 million in city contracts to a local truck dealership, which turned around and cut him a $13,000 check.

She argues the majority accepted an "absurd and atextual reading." Jackson continues to be the "keeping it real" justice.

The Court’s reasoning elevates nonexistent federalism concerns over the plain text of this statute and is a quintessential example of the tail wagging the dog.

Mark Joseph Stern of Slate summarized on Twitter:

Jackson, in dissent, says the majority's decision allows state and local officials to accept "rewards" for official acts "in ways that are functionally indistinguishable from taking a bribe," carving a massive hole into the federal anti-bribery law. 

More than one member of the majority are somewhat biased when it comes about line drawing when it comes to bribery. 

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Kimberly Robinson, referencing other reporting from her paper said on Twitter that SCOTUS

inadvertently released its opinion in EMTALA abortion case earlier this morning. The Justices are poised to allow emergency abortions in Idaho, suggesting the Court shouldn't have gotten involved in the early litigation.

I refreshed the website multiple times and did not see this. So, it must have been there only for a very limited time. I am not sure why they did not hand it down today.  It would have made more sense to hand down three opinions, two involving limited but significant issues and a third having some wider implications. We shall see what happens.

A reporter eventually tweeted a link to the opinions. There are separate opinions joined by nine justices (2-3-1-3), which is weird in such a dismissal. The formatting looks weird. And, there are typos. It does seem like it was not ready to be posted. So, perhaps the release was an accident, simple as that. Other reasons were offered, including that they were waiting for the presidential debate to be over [why release the Biden case then?]. 

A CSPAN producer in charge of the courts posted this statement from the "SCOTUS spokesperson." (I suppose the public information office.) I continued to be annoyed that such things are not posted on the Court's website as a "press release" or "media advisory," to cite two sections on the website. We have to get them secondhand. 

As the Supreme Court turns continues.