Legal Docket: Back in session

NICK EICHER, HOST: It’s Monday morning, October 2nd and you’re listening to The World and Everything in It from listener-supported WORLD Radio. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket. And today’s that special day: the first Monday in October!

CURLEY: [Gavel] Oyez, Oyez, Oyez! All persons having business before the Honorable, the Supreme Court.

EICHER: The 2023—2024 term of the U.S. Supreme Court!

REICHARD: Yes, indeed! And we offer the same bargain as we do every first Monday in October: you commit to these 10-minutes-or-so every Monday from now to the end of the term in June. You do that and you will have heard something about some good takeaway from every single argument the justices hear.

EICHER: That’s right. Build your knowledge of civics and maybe even win the next trivia contest. Just 10 minutes, sounds too good to be true, but it is true! We’ve delivered year after year on it, and we’re gearing up to deliver once again.

Arguments start today, we’ll bring analysis next week. Meantime, start us off with a preview of things to come.

REICHARD: Yes, but do note that the entire schedule is not fully set yet. Right now it’s about halfway done:

The justices have accepted 34 cases for review so far; typically the number is in the sixties on the low end, eighties on the high end.

So today’s preview just hits a few of what could be blockbusters.

I also think it’s useful to understand how the Supreme Court accepts cases for review in the first place.

And who better to explain that than our old friend Justice Stephen Breyer?

It’s only been a year since he retired, and I’m just verklempt.

He retired last year after 28 years on the bench. Here’s a clip of an interview he did at Tufts University back in 2018. After all the trials and all the appeals are over with, he says, there’s only one place left to go.

BREYER: And that's us. Alright, now you get a rough idea of the numbers. If I tell you out of all those millions of cases, there may be 80 to 100,000, which have a federal question. That's Congress, or the Constitution. And 8000 of those, or about 10%, will ask us, please hear our case. We don't have to, you see, we don't have to. Out of those 8000 we’ll probably grant around 80. So you're talking about maybe 60, 70, 80 cases out of 8000 who ask us. So it's a tiny, tiny, tiny, tiny, narrow question.

Now you also see I have two jobs. First, is you have to decide. You have to decide what to decide. Four votes, takes a case. Four out of nine. And then you have to decide what you decided to decide. Now if you understand me, then you're already on your way to law school. [laughter]

EICHER: So now you know! Well, let’s bring in legal reporter Jenny Rough and we’ll quickly run through some of the big cases to watch. Hi, Jenny!

JENNY ROUGH: Hi, Nick and Mary. Let’s start with disputes over American citizens, their government, and social media.

The question is whether Americans can sue government officials who block them on social media.

Two circuits came to two different conclusions: One said you can sue politicians who block you, the other said you can’t.

Now, when circuits split like that, that gets the attention of the Supreme Court. It is a major reason the high court takes a case to resolve that split. So here we are.

The two cases are similar, so I’ll just talk about one set of facts. Beginning with the case Lindke v Freed. Here, a city manager faced an unhappy constituent who posted a stream of negative comments on the city manager’s Facebook page.

Specifically, the constituent blasted the manager for his handling of the pandemic.

The city manager ended up deleting the comments, and eventually blocked the guy entirely.

REICHARD: OK, I think I see the problem. Public official basically shutting down free speech.

ROUGH: That’s howhe saw it. He said being blocked on social media was a violation of his First Amendment rights. But eventually the appeals court for the 6th circuit didn’t see it that way. Its reasoning was that the city manager operated his Facebook page in his personal capacity. But a similar case out of the 9th Circuit decided the other way: that public officials who block constituents do violate their constitutional rights.

So the legal question for the justices boils down to this: Does a public official engage in state action—subject to First Amendment analysis—when he uses social media to communicate with the public about job-related matters and then blocks someone?

EICHER: Right, social media for all its faults and abuses, that’s increasingly our town square, or I guess that’s the argument. However it turns out, that’s one’s going to have a broad effect. But there are more social-media controversies on the docket, right?

REICHARD: That’s right. And just on Friday, the justices took on what’ll be landmark social media cases arising out of Texas and Florida. The allegation is that companies are censoring conservative perspectives. The question is whether states can restrict social media companies from removing those kinds of posts. The companies say the laws strip them of their right to choose what to publish.

EICHER: There’s been another trend with this court: taking on some of the powers of the administrative state, or as some say, the deep state. Back in the Reagan years, I remember it as “the permanent government.” Looks like the court is delving back into that area of the law.

REICHARD: Yes, and there’s a real biggie coming up. It may even drive a stake through the heart of the administrative state. This case is Loper Bright Enterprises v Raimondo. The facts arise from the fishing industry and the EPA, the Environmental Protection Agency.

And here’s why I think this is so big: Because the court could use this case to overrule something called the Chevron Doctrine. That says if a law is silent or ambiguous on an issue, then courts have to defer to agency interpretations.

And what I’m going to tell you next is a classic trivia game answer. Ready?

That Chevron ruling came down in 1984, during the Reagan administration. So 1984 was one year after an EPA administrator resigned. Her name: Anne Gorsuch.

She had a teenage son by the name of Neil.

EICHER: Who would grow up to become an associate justice of the U.S. Supreme Court. Do I get to spin again?

REICHARD: Ding, ding, ding. Yes, and he is no fan of Chevron.

Back in 2016, Neil Gorsuch wrote an excoriating critique when he was still a judge on the 10th circuit. He wrote that Chevron, his words, “seems no less than a judge-made doctrine for the abdication of judicial duty.”

EICHER: So back to the Loper case, Mary. What’s the specific controversy there?

REICHARD: Well, a law that requires government surveillance of fishing companies. But it says nothing at all about who pays for that surveillance. Specifically, federal monitors to ride along in the boats. So the agency interpreted the silence of the law to say a whole lot: Meaning it requires that the fishermen pay the salaries of the fishing monitors!

Well, that didn’t go over well, as you can imagine. So the fishermen are suing. And they have a lot of support. As former Solicitor General Paul Clement put it, this is the maritime equivalent of the forced quartering of the British during the American Revolution.

ROUGH: Yeah, that is a big one and it’s not the only Chevron-related case on the docket. It’s just one of them.

Alright, another big case to preview: United States v Rahimi. This one involves illegal drugs and guns. The respondent is a drug dealer who assaulted people and shot at them. He was under a restraining order for domestic violence when he was found in possession of a gun.

That’s against the law, to have a gun while under a restraining order. For breaking that law, he received a sentence of six years in prison. But here’s the wrinkle. Last year the Supreme Court ruled in a big gun case called Bruen. That says restrictions on guns must be rooted in the history and tradition of the United States.

So the 5th Circuit overturned his conviction, reasoning there’s no deep history or tradition taking away a man’s gun under these particular facts.

REICHARD: You know, I read of social workers who found this just absolutely outrageous. But restraining orders are handed out fairly routinely, and to people without a long rap sheet like this guy can get caught up in the prohibition against possessing guns.

ROUGH: Right, so the U.S. government appealed. And that will give the justices a chance to finesse how courts interpret the Second Amendment right to defend yourself with a gun.

REICHARD: Okay, this next one’s made a lot of taxpayers mad: taxing people on money they haven’t even received.

Here, it’s a married couple named Charles and Kathleen Moore. They invested in a business in India that helps farmers there buy power tools. The company did very well, although it didn’t distribute dividends.

And here’s where the Moores got caught up. In 2017, President Trump signed into law the Tax Cuts and Jobs Act. A section of that requires American citizens who own shares of a foreign corporation to pay taxes on their share of corporate earnings, even if no earnings were ever distributed!

So that left the Moores with a $15,000 tax bill on money they never even received. They argue this violates the 16th Amendment. Here’s what that says: “Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” The Moores argue this means income has to be distributed before it can be taxed.

ROUGH: Next, another administrative agency dispute. Here, the Securities and Exchange Commission went after a man named George Jarkesy. He’d established hedge funds that controlled about $24 million dollars. The SEC alleged securities fraud against him and opened up an enforcement proceeding. It could do that through federal court or through its own in-house proceeding.

The SEC decided to do it in-house, which means it essentially acts as both prosecutor and judge. Administrative proceedings don’t have juries. So Jarkesy argues that violates his right to a jury trial under the 7th Amendment.

He has two other broad claims beyond the scope of our time, but a decision here has the potential to end the use of administrative courts in agency proceedings.

REICHARD: So those are some highlights of cases already accepted for review.

There are many disputes at the certiorari stage, meaning, appeals made for the court to take a case but not yet accepted. There’s another race-based admissions case involving a top high school. A ruling here could expand on last term’s ruling that struck down the use of race-based admissions policies at universities.

ROUGH: Also pending in that stage are disputes on the abortion front: disputes over the use of the abortion pill mifepristone among the states that protect the unborn.

Finally, Washington state is trying to censor a Christian counselor who gives counsel on sexuality and gender identity. He grounds human identity in God’s design. And his clients want his services and can’t have them. His lawyers have asked the high court to hear his case.

REICHARD: So another blockbuster term ahead, Jenny, thanks for your help.

ROUGH: Yeah, you betcha.

REICHARD: And that’s this week’s Legal Docket!

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