Michael Li explains:
Category Archives: Supreme Court
“How a Phone Call Drew Alito Into a Trump Loyalty Squabble”
The circumstances were extraordinary for another reason: Justice Alito was being drawn into a highly personalized effort by some Trump aides to blackball Republicans deemed insufficiently loyal to Mr. Trump from entering the administration, according to six people with knowledge of the situation, who spoke on the condition of anonymity to describe private conversations.
The phone call centered on William Levi, a former law clerk of Justice Alito’s who seemingly has impeccable conservative legal credentials. But in the eyes of the Trump team, Mr. Levi has a black mark against his name. In the first Trump administration, he served as the chief of staff to Attorney General William P. Barr, who is now viewed as a “traitor” by Mr. Trump for refusing to go along with his efforts to overturn his loss in the 2020 election.
Mr. Levi has been under consideration for several jobs in the new administration, including Pentagon general counsel. He has also been working for the Trump transition on issues related to the Justice Department. But his bid for a permanent position has been stymied by Mr. Trump’s advisers who are vetting personnel for loyalty, according to three of the people with knowledge of the situation.
As Mr. Trump puts together his second administration, Mr. Barr is among a handful of prominent Republicans who are viewed with such suspicion that others associated with them are presumptively not to be given jobs in the administration, according to people familiar with the dynamic. Republicans in that category include Mr. Trump’s former secretary of state Mike Pompeo and his former U.N. ambassador Nikki Haley. To be called a “Pompeo guy” or a “Haley person” is considered a kiss of death in Mr. Trump’s inner circle. Resistance to such people can usually be overcome only if Mr. Trump himself signs off on their hiring.
Tuesday’s phone call took place against that backdrop. Several people close to the Trump transition team on Thursday said their understanding was that Justice Alito had requested the call. But a statement from Justice Alito framed the matter as the justice passively agreeing to take a call at the behest of his former clerk.
Mr. Levi did not respond to a request for comment. The Supreme Court press office said it had nothing to add to the statement it put out from Justice Alito on Wednesday. In that statement, Justice Alito said that Mr. Levi “asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position. I agreed to discuss this matter with President-elect Trump, and he called me yesterday afternoon.”…
Supreme Court, on 5-4 Vote, Will Not Stop Sentencing of Donald Trump Tomorrow (on Charges for Which the Judge Will Not Impose Jail Time)
Here is the order in full:
24A666 TRUMP, DONALD J. V. NEW YORK, ET AL.
The application for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons. First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of “unconditional discharge” after a brief virtual hearing.
Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.
Jeremy Stahl and I wrote about why the Court might have wanted to stay the sentencing at this link.
“TikTok Case Before Supreme Court Pits National Security Against Free Speech”
When the Supreme Court hears arguments on Friday over whether protecting national security requires TikTok to be sold or closed, the justices will be working in the shadow of three First Amendment precedents, all influenced by the climate of their times and by how much the justices trusted the government.
During the Cold War and in the Vietnam era, the court refused to credit the government’s assertions that national security required limiting what newspapers could publish and what Americans could read. More recently, though, the court deferred to Congress’s judgment that combating terrorism justified making some kinds of speech a crime.
The court will most likely act quickly, as TikTok faces a Jan. 19 deadline under a law enacted in April by bipartisan majorities. The law’s sponsors said the app’s parent company, ByteDance, is controlled by China and could use it to harvest Americans’ private data and to spread covert disinformation.
The court’s decision will determine the fate of a powerful and pervasive cultural phenomenon that uses a sophisticated algorithm to feed a personalized array of short videos to its 170 million users in the United States. For many of them, and particularly younger ones, TikTok has become a leading source of information and entertainment….
“Roberts Calls Court’s Relationship With Congress ‘Strained.’ Who’s to Blame?”
Jimmy Hoover for the NLJ.
I offered some thoughts in this one:
Many commentators say that a similar dynamic is responsible for today’s partisan rancor in light of the Supreme Court’s now solidly 6-3 supermajority of Republican appointees.
“The Supreme Court for the first time in modern history has all the conservatives appointed by one party and all the liberals appointed by the other,” said Rick Hasen of UCLA Law, a prominent Supreme Court scholar.
In the past, Hasen noted, several Republican appointees such as Justices John Paul Stevens and David Souter frequently voted with Democratic-appointed liberal justices in politically or socially fraught cases. No longer.
“It’s much easier to see and to describe the court as acting in partisan ways: ‘the Republican majority on the Supreme Court, the Democratic dissenters on the Supreme Court,’” Hasen said. “Language like that is accurate in a way that it wasn’t before.”
What’s more, this expanded conservative majority has not shied from wielding its power, often at the expense of the legislative and executive branches, and often without any of the court’s liberal members signing on, Hasen said. This past term’s blockbuster 6-3 decision establishing broad criminal immunity for former President Donald Trump and effectively delaying his trial over the 2020 election is a prime example.
“That was huge and I was wrong,” said Hasen.
“I was expecting the chief justice to be looking for some common ground and to be looking for a way for the court to speak, if not with one voice, at least with some bipartisan agreement, and that didn’t happen at all,” Hasen added. “Something has changed with John Roberts.”
Although Hasen faults the court for its failure to bridge partisan divide, he lays part of the blame at politicians such as Schumer who have only fanned the flames of division with their rhetoric.
“I do think that because of this partisan split, you often get hyperbole or worse coming from political actors,” Hasen said.
“It’s not as though every criticism of the court is well considered,” he added. “I thought that language was intemperate and not helpful.”
Biden DOJ Asks SCOTUS for Chance to Give Up Defense of Laws Limiting Political Parties from Becoming Conduits for Large Campaign Contributions; Trump DOJ Will File Instead
See this letter from the Solicitor General requesting an extension of time into the Trump Administration to file a response to the cert. petition in the NRSC case. Here is what I wrote in an earlier post on this case:
When the en banc Sixth Circuit decided this case, I wrote: “I have been waiting for this issue to get back to the Supreme Court for a while, and this is just the vehicle that could get it there. I don’t expect the Court, if it considers the issue, to uphold the limits. The Sixth Circuit saw itself bound by existing Supreme Court precedent in a way that the Supreme Court itself will not be.”
Now the case has reached the Supreme Court. Here is the cert. petition (via Balls and Strikes).
The federal government’s response is due Jan. 6 (unless there’s an extension), and I expect the government will oppose the cert. grant, arguing that the NRSC’s argument is foreclosed by existing precedent. The question is whether Trump’s DOJ will do a 180 in the case should the Supreme Court agree to hear it.
I’ll have more to say down the line on what it would mean for money in politics in the U.S. should the Supreme Court agree with the Republicans.
“Chief Justice Roberts Condemns Threats to Judicial Independence”
Judicial independence is under grave threat on several fronts, Chief Justice John G. Roberts Jr. wrote on Tuesday in an unusually urgent and somber year-end report on the state of the federal judiciary.
“Violence, intimidation and defiance directed at judges because of their work undermine our Republic, and are wholly unacceptable,” he wrote.
The report, which arrived in the wake of questions about the court’s ethical standards and a drop in its approval ratings, said some criticism of judges’ work is healthy, warranted and welcome.
“Unfortunately, not all actors engage in ‘informed criticism’ or anything remotely resembling it,” he wrote. “I feel compelled to address four areas of illegitimate activity that, in my view, do threaten the independence of judges on which the rule of law depends.”
One, he wrote, was “violence directed at judges for doing their jobs.” The number of hostile threats and communication directed at judges has more than tripled in the past decade, he wrote. “In extreme cases,” he added, “judicial officers have been issued bulletproof vests for public events.”
…“Public officials, too, regrettably have engaged in recent attempts to intimidate judges — for example, suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations,” Chief Justice Roberts wrote, adding: “Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others.”
…A third threat to judicial independence, he wrote on Tuesday, was disinformation about the work of the courts amplified by social media. Some of it, he said, was the product of “a new and growing concern from abroad.”
“In recent years, hostile foreign state actors have accelerated their efforts to attack all branches of our government, including the judiciary,” the chief justice wrote. “In some instances, these outside agents feed false information into the marketplace of ideas. For example, bots distort judicial decisions, using fake or exaggerated narratives to foment discord within our democracy.
“In other cases, hackers steal information — often confidential and highly sensitive — for nefarious purposes, sometimes for private benefit and other times for the use of state actors themselves. Either way, because these actors distort our judicial system in ways that compromise the public’s confidence in our processes and outcomes, we must as a nation publicize the risks and take all appropriate measures to stop them.”…
“State Law and Federal Elections After Moore v. Harper”
Carolyn Shapiro has written this article for the NYU Law Review. Here is the abstract:
In Moore v. Harper, the Supreme Court rejected the extreme proposition that state legislatures operate free from state constitutional constraints and judicial review when they regulate federal elections. The Court, however, left open the possibility that a state court might run afoul of the federal Constitution if, in striking down or construing state election law, it exceeds “the ordinary bounds of judicial review.” This Article explores the potential scope of that exception, and it proposes arguments and strategies to guard against undue and disruptive federal court intrusion on state election law. In particular, the Article relies on longstanding principles of federalism to develop substantive and procedural arguments that insist on federal court deference to state courts’ interpretation and application of their own law.
“Justice Thomas Did Not Disclose Additional Trips, Democrats Say”
Justice Clarence Thomas failed to disclose two additional trips from a billionaire patron than have previously come to light, Senate Democrats revealed on Saturday after conducting a 20-month investigation into ethics practices at the Supreme Court.
The findings were part of a 93-page report released by Democratic staff members of the Judiciary Committee along with about 800 pages of documents. It said the two trips, both of which had been previously unknown to the public, took place in 2021 and were provided by Harlan Crow, a real estate magnate in Texas and a frequent patron of Justice Thomas’s.
One trip took place that July by private jet from Nebraska to Saranac, N.Y., where Justice Thomas stayed at Mr. Crow’s upstate retreat for five days. The other came in October, when Mr. Crow hosted Justice Thomas overnight in New York on his yacht after flying him from the District of Columbia to New Jersey for the dedication of a statue.
The disclosures were one of the few new revelations in a report that otherwise largely summarized information about largess accepted by justices — and failures to disclose it — that had already become public. Justice Thomas had not disclosed the trips, even after refiling some of his past financial forms, and the committee learned about them through a subpoena to Mr. Crow, the report said.
As Supreme Court Sets TikTok Case for Oral Argument, Senator McConnell, Champion of First Amendment in Citizens United, Files Amicus Brief Saying Government Can Shut Down Platform to stop “deployment of subversive enemy propaganda through algorithmic curation.”
Quite the amicus brief from the purportedly free-speech Senator McConnell.
The Supreme Court set a very expedited schedule for oral argument in the TikTok case (unlike its dilatory tactics in the Trump immunity case).
TikTok Goes to Supreme Court Seeking Emergency Order to Block Law Requiring Sale/Shutdown, Citing Rejection of the Antidistortion Interest in Campaign Finance Cases
You can find the filing here (via NBC News). The relevant discussion of the antidistortion interest is on pages 25-26. See my earlier post on the parallels to the campaign finance cases.
UPDATE: Here is the docket.
“What If Free Speech Means Banning TikTok?”
Alan Rozenshtein in The Atlantic:
But in its decision, the court did something unexpected. In addition to crediting the government’s national-security arguments, it highlighted an important tension within pro-free-expression arguments: the right to access and speak on the platform of one’s choosing versus the right to have platforms free from foreign manipulation and control. The court explained:
In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the [People’s Republic of China] has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC’s ability to do so is at odds with free speech fundamentals. Here the Congress, as the Executive proposed, acted to end the PRC’s ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment.
This anti-distortion rationale for government speech regulation used to be central to the First Amendment, especially in campaign-finance cases, until the Supreme Court rejected it when striking down corporate campaign-contribution limits in Citizens United v. FEC.Recently, in last term’s Moody v. NetChoice, the Court criticized state laws limiting social-media content moderation by invoking an (in)famous 1970s precedent that the government cannot “restrict the speech of some elements of our society in order to enhance the relative voice of others.”
But the anti-distortion rationale lives on in national-security cases. For example, only a year after Citizens United, the Supreme Court affirmed a decision by then–D.C. Circuit Court Judge Brett Kavanaugh that foreigners have no First Amendment right to contribute to U.S. elections.
The anti-distortion argument also figured in the concurring opinion by Sri Srinivasan, the chief judge of the D.C. Circuit, which focused on the long history of legislation restricting foreign ownership of key sectors of the U.S. economy, including radio, broadcast TV, and cellular networks. These restrictions were motivated by the same legitimate concerns as the TikTok law: the possibility for covert manipulation of the American information environment. The emphasis here is on covert because, as Srinivasan pointed out, “counterspeech”—responding to objectionable speech with more speech—“is elusive in response to covert (and thus presumably undetected) manipulation of a social media platform.”
Republican Party Suit to Blow Up Limits on Coordinated Spending Between Political Parties and Candidates Reaches the Supreme Court: I Expect They Will Take the Case and Further Deregulate Campaign Financing
When the en banc Sixth Circuit decided this case, I wrote: “I have been waiting for this issue to get back to the Supreme Court for a while, and this is just the vehicle that could get it there. I don’t expect the Court, if it considers the issue, to uphold the limits. The Sixth Circuit saw itself bound by existing Supreme Court precedent in a way that the Supreme Court itself will not be.”
Now the case has reached the Supreme Court. Here is the cert. petition (via Balls and Strikes).
The federal government’s response is due Jan. 6 (unless there’s an extension), and I expect the government will oppose the cert. grant, arguing that the NRSC’s argument is foreclosed by existing precedent. The question is whether Trump’s DOJ will do a 180 in the case should the Supreme Court agree to hear it.
I’ll have more to say down the line on what it would mean for money in politics in the U.S. should the Supreme Court agree with the Republicans.
Trump and Cheseboro filings in the Georgia conspiracy case
As expected, President-elect Donald Trump has filed a motion in the Georgia Court of Appeals to dismiss the conspiracy prosecution against him in Georgia on the basis that “a sitting president is completely immune from indictment or any criminal process, state or federal.” (The argument behind that claim isn’t only from the Trump v. United States SCOTUS case this past summer: the claim is well beyond what the Supreme Court decided.)
At least as interesting to me, in many ways, is the filing of Kenneth Cheseboro, in the Fulton County trial court, on the same day. Cheseboro pled guilty in October 2023 to one conspiracy count of filing a false document, based on the filing of a fraudulent certificate of electoral votes with a Georgia federal court. In September 2024, the Fulton County court declared that count unconstitutional with respect to John Eastman and Shawn Still as applied to these facts: the judge said that the state law couldn’t be used to prosecute false filings in a federal court. That decision is now, I believe, up on appeal. But in the meantime, Cheseboro has argued that a guilty plea to a charge that has been invalidated must itself be invalidated.