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February 17, 2023

A Supreme Court Preview

By: Carol Rooney

We heard from an outstanding panel at the 2022 AJEI Summit providing an excellent preview of the U.S. Supreme Court’s upcoming arguments and pending decisions.  The panel was moderated by Jason Steed, an appellate attorney with Kirkpatrick Townsend & Stockton LLP’s Dallas office.  The panelists consisted of Deepak Gupta, an appellate attorney and the founding principal of the boutique appellate firm, Gupta Wessler, PLLC, located in Washington, D.C., as well as Professor Steve Vladeck from the University of Texas School of Law in Austin, Texas. 

The panelists began with a discussion of emerging themes and trends.  Professor Vladeck noted two dominant themes.  First, he highlighted that this was a new Court.  Anytime that there is a new Justice, the Court reinvents itself.  Justice Jackson is “a very different Justice.”  Second, this Court is not afraid of anything!

The commentary emphasized this remarkable moment in American history. 

Mr. Gupta noted that the Court seems unconstrained by precedent.  Notably, Justices are writing separately to suggest lines of cases that should be overturned.  And there is a lot that we don’t know about what these Justices think about lines of precedent to overrule.  Mr. Gupta commented that originalism is entering the picture in all sorts of areas of law that we would not expect to see – civil procedure, for example. 

The panelists discussed how oral argument differed fundamentally when arguments occurred by phone during the pandemic.  For example, the arguments are going much longer.  Justice Thomas remains very active at oral arguments.  We are also starting to see different combinations of judges agreeing or disagreeing.  This will be very interesting going forward!  The Court is now live-streaming the audio of oral arguments which all agreed was a good thing. 

 A discussion followed of two election-related cases pending on the Court’s docket.  The first, Moore v. Harper, involves the so-called “independent state legislature doctrine” which essentially states that – whatever the state legislature says about electors is “gospel” even if it violates the state’s constitution. Professor Vladeck commented that this is a “stunning” argument.  The case is garnering a lot of attention in light of the 2020 election.  There is a remarkable coalition of amicus arguing that state legislatures can’t do this.  It would have been easy for the Court to avoid wading into the fracas by not taking the case.  By taking the case, hopefully the Court will walk back from the ledge. 

The second case, Merrill v. Milligan, is an Alabama redistricting case.  The unsigned February 2022 order stayed the district court’s injunction pending a ruling on the merits.  The panelists noted that what is probably going to happen is that the Court will revisit vote dilution cases and claims.  Alabama wants the Court to go further even if this case results in making it harder to bring vote dilution claims. Notably, much of this is happening via unsigned orders.  We are seeing the Court’s “shadow docket” and its effects. 

The panelists discussed pending affirmative action cases.  The plaintiff in both cases is the Students for Fair Admissions.  One case is against Harvard and the other is against the University of North Carolina.  The cases were originally consolidated but subsequently split so that Justice Jackson would not have to recuse herself.  She can now hear the North Carolina case.

Both cases challenge Grutter’s approval of race-based preferences and argue that affirmative action is illegal.  Interestingly, some amici have argued that the plaintiffs have no standing.  There are originalists on both sides of the argument. 

The cases were argued on Halloween, which may prove ominous.  After a five-hour oral argument, it appears obvious that affirmative action is going away.

Mr. Gupta commented that Justice Jackson’s voice made a difference during the oral argument.  She was the “moral conscience” of the Court.  She asked a powerful question comparing preferences based on family ties and legacy to preferences based on race.  What is the difference? 

Professor Vladeck noted that the Court heard the North Carolina case via a petition for certiorari.  There is a remarkable shift in the number of certiorari petitions granted by this Court.  The Court is clearly “not afraid.” 

Another interesting case on the Court’s docket, but that is probably not on many folks’ radar, is a case involving the Indian Child Welfare Act – The State of Texas v. Haaland.  The Act imposes a set of preferences for adoptions of Native American children.  Native American tribes have preference.  However, this has been challenged by white families trying to adopt Native American children. 

The State of Texas was required to implement the Act for all Native American children who appear before their courts in child-custody proceedings.  State of Texas challenged Congress’s right to regulate adoptions, etc., via the Act.  A Texas district court ruled that the Act was unconstitutional.  The Fifth Circuit sitting en banc “split the baby.” 

The issues are now before the Court and involve important questions about the reach and extent of congressional power.  The opposition to the Act argues that it violates the Fourteenth Amendment.  Supporters argue that questions regarding placement of Native American children are different than race.  Tribes are political entities “regulated” by the U.S. Constitution and federal law. 

At the oral argument, Justice Gorsuch seemed receptive to arguments that protect tribal authority.

It will be very interesting to see how this case plays out. 

The panel also discussed a case involving issues of personal jurisdiction, horizontal federalism and the Due Process Clause.  In Mallory v. Norfork Southern, the question is whether there is general jurisdiction because of a Pennsylvania statute that states if you do business in Pennsylvania, you consent to jurisdiction. 

The panel also discussed a case brought by pork producers challenging a California law that limits meat that can be sold in the state – National Pork Producers Council & American Farm Bureau Federation v. Ross.  Under the challenged law, pork cannot be sold unless the pig was kept in a big pen, under humane conditions, etc.  The pork producers argue that this is unconstitutional extra-territorial regulation as it affects the industry outside California.  It also unduly burdens interstate commerce.  The defenders of the law argue that California finds these practices to be immoral and has the right to regulate it.  The ultimate question to be decided is the extent to which states can regulate “morality.”  Justice Kagan raised questions about laws that banned horse meat, and banned goods made by unvaccinated workers or non-union employees.  States can ban products entirely but cannot regulate production? 

Professor Vladeck highlighted a “sleeper” case, U.S. v. Texas, which involves immigration enforcement policies.  A federal district court in Texas enjoined federal immigration policy.  Texas has filed 29 lawsuits against the Biden administration regarding immigration enforcement policies.  None has been filed in Austin.  Texas has been able to forum-shop and judge-shop.  A question has arisen regarding whether Texas has standing.  This is an opportunity for the Court to put an end to the practice of state attorneys general suing to get nationwide injunctions and then going to the Court.  If the Court upholds Texas’s standing, then no executive branch policy will survive a state challenge.  There was a lively discussion of the problem of states suing the federal government and obtaining nationwide injunctions that bind non-specific plaintiffs. 

The panel concluded with a discussion of a new case pending before the Court involving Section 230 of the Communications Decency Act.  The Act passed in 1996 and provides protection to internet platforms such as Facebook, etc.  The Act insulates the platforms from libel based on user speech.  The case, Gonzalez v. Google LLC, arose from the terrorist activity in Paris, France in 2015 in which ISIS terrorists fired into a crowded diner.  The plaintiff alleges that Google, via YouTube, supported ISIS extremists by “recommending” ISIS videos to viewers via algorithms and the like.  Critical issues such as the distinction between service provider and publisher, and what constitutes “publishing” will be considered by the Court.  Also waiting in the wings are Texas and Florida cases which sought to punish platforms for engaging in discrimination and/or limiting speech.  Of course, the panel highlighted that the First Amendment lurks behind all of this. 

The panel provided an incredible and very interesting discussion of the pending cases.  Their insight and commentary as experienced practitioners before the Court was invaluable!  As a first-time attendee at the AJEI Summit, this session was one of my favorites!

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Carol Rooney

Butler Weihmuller Katz Craig

Carol Rooney is partner at the Tampa office of Butler Weihmuller Katz Craig and a Board Certified Appellate Attorney.  She serves as the Florida State Chair of the ABA’s Council of Appellate Lawyers and devotes her practice to handling civil appeals in Florida and throughout the U.S.