Full Transcript - Supreme Court Roundup 2023
Episode #58 - Supreme Court Roundup 2023 Full Transcript
Watch Episode #58 - Supreme Court Roundup 2023-2024 Term
Today on Legalese, it is time once again for my annual Supreme Court Roundup.
Greetings everybody and welcome back to Legalese. For those of you who may be new to my channel, I especially welcome you. This is a podcast where we will be discussing all things constitutional law— As well as current events in other areas of law, politics and culture.
You can find out much more about the show over at my newly revamped homepage legalesepodcast.com and you can sign up for my newsletter that will make sure you get notified when I put out new content at legaleseshow.com
As many of you know the start of the newest fall term of the Supreme Court will begin this coming Monday, October 2nd.
Today I want to share the list of important and interesting cases that I will be staying on top of from now until the end of this session in late June to early July When I do my Supreme Court wrap up. Putting my final point on the cases that we will follow here on my channel. For anyone who has not been watching this show long enough to have seen my previous roundups and wrap-ups, let me explain how this works. Because my Supreme Court roundup is different than many of my fellow legal bloggers and podcasters who do their own version of this… Usually in one of two ways
They attempt to cover every merits case worth covering
They focus one a particular topic based on their expertise.
So this second group, for example, may consist of administrative law attorneys, who strictly cover all the relevant administrative law cases this term.
There are many great writers, bloggers, podcasters, journalists and so forth who do great work. So rather than oversaturate the legal blogger web space I go through the list of merits cases and I pick the ones I want to cover— whether they relate to a topic I frequently cover here on my channel, or the case represents something uniquely interesting that catches my attention (you will understand what I mean by this when we eventually get to the Vidal v Elster case, a little later on in this video) on top of the few cases that even Ray Charles could see though Stevie Wonder’s eyes are going to be major landmark decisions, regardless of the particular outcome. This frees me up to cover the cases I cover as comprehensively and holistic as I please.
There are going to be a number of interesting and important cases that I won’t be including in this roundup, so don’t think that just because I’m not covering a particular case, that means I believe that case must be less important than others.
Something worth briefly noting is that In my past video on the upcoming Chevron Doctrine case Loper Bright Enterprises v Raimando (which we will cover later in this video as well) I remarked that this upcoming term is one that will be dominated by landmark administrative law cases. That is still true, though I personally will only be covering two of them.
But a close runner-up for most dominant cases this term has to be first amendment cases. Five of the ten cases I will be covering are first amendment cases, and that’s not even the whole lot, I have left a number of interesting and important first amendment cases on the table this session for brevity’s sake.
Most dominant among these are cases related to the first amendment and social media platforms. That particular niche is at the heart of four out of the five 1st amendment cases I will be covering. Two deal with State law regulating social media and two deal with whether politicians blocking certain people from accessing their social media constitute a first amendment violation. We will be starting with the social media state law cases. These are Moody v Netchoice and Netchoice v Paxton.
MOODY V. NETCHOICE, LLC
This deals with a law enacted in Florida that attempts to prevent social media companies from abusing their enormous power to censor speech
Florida Gov. Ron DeSantis recently signed a measure (SB 7072) that would bar social media platforms from de-platforming or de-prioritizing any Florida political candidates. Among other things, the law provides that:
Platforms cannot ban or de-prioritize candidates for state office for more than 14 days.
Platforms cannot ban or de-prioritize any news outlet meeting certain size requirements.
Platforms must be transparent about moderation processes and give users notice of moderation actions.
Users and the state will have the right to sue companies that violate the law. Statutory fines could be as high as $250,000 per day for some offenses.
The Questions presented are:
Whether the First Amendment prohibits a State from requiring that social-media companies host third-party communications, and from regulating the time, place, and manner in which they do so.
Whether the First Amendment prohibits a State from requiring social-media companies to notify and provide an explanation to their users when they censor the user's speech.
The petitions for writs of certiorari are granted limited to Questions 1 and 2 presented by the Solicitor General in her brief for the United States as amicus curie.
Whether the laws’ content-moderation restrictions comply with the First Amendment.
Whether the laws’ individualized-explanation requirements comply with the First Amendment.
NETCHOICE, LLC V. PAXTON
the State of Texas-much like Florida before it-has enacted a viewpoint-, content-, and speaker-based law (House Bill 20 or "HB20") targeting certain disfavored "social media" websites. Texas governor Greg Abbot has been emphatic about the fact that he will not stand for social media censorship, but in all fairness he couldn’t stand against it either
HB20 Section 7 prohibits these websites from making editorial choices based on "viewpoint." And HB20 Section 2 imposes on these websites burdensome operational and disclosure requirements, chilling their editorial choices. This Court has already ensured once that Respondent cannot enforce this law against Petitioners' members. NetChoice, LLC v. Paxton, 142 S. Ct. 1715, 1715-16 (2022).
The question presented is:
Whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech-or otherwise burdening those editorial choices through onerous operational and disclosure requirements.
O’Conner and Lindke
The Supreme Court will decide two cases raising questions unique to the social media age. Many public officeholders have social media accounts that are not formally run by the government, but which the officeholders nonetheless use to discuss public affairs. In Port Huron, Michigan, the city manager used a Facebook account to discuss COVID-19 emergency measures and other city policies. In Poway, California, two school board members used Facebook and Twitter accounts to discuss school district issues. When these officeholders were criticized by constituents on their social media accounts, they “blocked” some of those users, which prevented the constituents from reading or commenting on the officeholders’ posts.
The officeholders in both cases were sued by their constituents for these social‐ media blockings, and both cases raise a novel question. While private citizens are free to ignore or engage with the speech of others as they please, the government has special obligations under the First Amendment. Government officials may not block access to government forums (say, a town meeting held at City Hall) on the basis of a citizen’s viewpoints. When the officeholders in these cases blocked other users from accessing social‐ media accounts that discussed government affairs, were the officeholders acting as private citizens or as agents of the government? In other words, were the blockings “state action” subject to First Amendment limits?
O'CONNOR-RATCLIFF V. GARNIER
Question Presented:
Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official's personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.
LINDKE V. FREED
Courts have increasingly been called upon to determine whether a public official who selectively blocks access to his or her social media account has engaged in state action subject to constitutional scrutiny. To answer that question, most circuits consider a broad range of factors, including the account's appearance and purpose. But in the decision below, the court of appeals rejected the relevance of any consideration other than whether the official was performing a "duty of his office" or invoking the "authority of his office." App. 5a.
The question presented is:
Whether a public official's social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.
VIDAL V. ELSTER
This is the “Small Hands Trump” case… and I generally try to steer clear of any topic related to Donald trump but this case is both hilarious and is one that has serious first amendment implications.
QUESTION PRESENTED
Section 1052(c) of Title 15 provides in pertinent part that a trademark shall be refused registration if it “[c]onsists of or comprises a name * * * identifying a particular living individual except by his written consent.” 15 U.S.C. 1052(c). The question presented is as follows:
Whether the refusal to register a mark under Section 1052(c) violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.
DEVILLIER V. TEXAS (takings clause)
In First English Evangelical Lutheran Church v. County of Los Angeles, this Court recognized that the Fifth Amendment's Takings Clause was "self-executing" and that "[s]tatutory recognition was not necessary" for claims for just compensation because they "are grounded in the Constitution itself[.]" 482 U.S. 304, 315 (1987). Since First English, several state courts of last resort have held that the self-executing nature of the Takings Clause requires them to entertain claims directly under the Clause without the need for statutory authorization. Two federal Circuits, the Fifth and the Ninth, disagree and have held that claims for just compensation are only available if they are legislatively authorized.
The question presented is:
May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?
LOPER BRIGHT ENTERPRISES V. RAIMONDO
As you may recall, the reason I made those videos because this case, which has major implication for Chevron Deference has been covered by both the left and right who are losing their fucking minds because they believe this case will absolutely be the death knell of chevron deference. With the conservatives celebrating a victory not yet won and the democrats denouncing a case that hasn’t even been tried yet. My point had been and will continue to be these are all sensationalized claims made by people seeing what they want to see. Yes, its within the realm of possibility this case will gut chevron deference, and I hope it does… But it won’t.
This background of this case, for those who may be wholly unfamiliar is as follows:
The Magnuson-Stevens Act (MSA) governs fishery management in federal waters and provides that the National Marine Fisheries Service (NMFS) may require vessels to "carry" federal observers onboard to enforce the agency's myriad regulations. Given that space onboard a fishing vessel is limited and valuable, that alone is an extraordinary imposition. But in three narrow circumstances not applicable here, the MSA goes further and requires vessels to pay the salaries of the federal observers who oversee their operations-although, with the exception of foreign vessels that enjoy the privilege of fishing in our waters, the MSA caps the costs of those salaries at 2-3% of the value of the vessel's haul.
The statutory question underlying this petition is whether the agency can also force a wide variety of domestic vessels to foot the bill for the salaries of the monitors they must carry to the tune of 20% of their revenues.
Under well-established principles of statutory construction, the answer would appear to be no, as the express grant of such a controversial power in limited circumstances forecloses a broad implied grant that would render the express grant superfluous. But a divided panel of the D.C. Circuit answered yes under Chevron on the theory that statutory silence produced an ambiguity that justified deferring to the agency.
The questions presented are:
Whether, under a proper application of Chevron, the MSA implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry.
Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
I would strongly encourage everyone to go watch my previous videos on this case
Did The Supreme Court Just Declare War On All Federal Regulations?
Do The Supreme Court's Actions Constitute An Attack On Democracy?
For the following reasons…
Administrative law is especially cumbersome to try and detangle, with a higher learning curve than other more familiar topics such as constitutional law. Its also a VERY dry topic, even by legalese standards (by “legalese” I am referring to the argot of lawyers, not the name of this show) administrative can be dryer than the Sahara. But, just like with constitutional law I think I do a pretty damn good job breaking these topics down in a way that is interesting to watch and easily accessible to lawyers and non-lawyers alike
The more people who are aware that 6 months ago I predicted the outcome of this case as going entirely against the general belief by political commentators on the left and right that this case WILL overturn chevron the more impressive it will be 6 months from now when I am proven right.
SECURITIES AND EXCHANGE COMMISSION V. JARKESY
In Jarkesy v. Securities and Exchange Commission, the US Court of Appeals for the Fifth Circuit held that the Securities and Exchange Commission’s (SEC) adjudication of fraud cases in administrative proceedings is unconstitutional
On May 18, 2022, the US Court of Appeals for the Fifth Circuit in Jarkesy v. Securities and Exchange Commission held that the Securities and Exchange Commission’s administrative proceedings adjudicating securities is unconstitutional.
On March 22, 2013, the SEC brought an enforcement action against hedge fund operator George R. Jarkesy, Jr. and Patriot 28, L.L.C (collectively “Jarkesy”)., alleging that they engaged in securities fraud under the Investment Advisors Act of 1940, Securities Act of 1933 and the Securities Exchange Act of 1934. The Jarkesy filed an interlocutory challenge in the US District Court for the District of Columbia seeking to enjoin the SEC administrative proceedings based on constitutional defects. The district court held, and the US Court of Appeals for the District of Columbia Circuit later affirmed, that the SEC administrative proceedings lacked jurisdiction over the case and that Jarkesy had to exhaust administrative remedies before raising their constitutional claims before a federal court of appeals.
The SEC administrative law judge (“ALJ”) in the SEC administrative proceeding issued an initial decision concluding that the Jarkesy had committed securities fraud, and Jarkesy appealed to the SEC. The SEC confirmed its own ALJ’s findings and imposed a civil penalty, disgorgement, and a cease-and-desist order against Jarkesy. Jarkesy then appealed the SEC’s order to the Fifth Circuit, which vacated the SEC’s decision because of constitutional defects, including:
The SEC’s enforcement actions before an ALJ deprived Jarkesy of his right to a jury trial under the Seventh Amendment to the US Constitution, which contains a right to a jury trial for common law actions, which include suits brought under the federal securities laws if the suit includes common-law-like claims, such as fraud, or seeks common-law-like remedies, such as a civil penalty,
The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 violated Article I of the Constitution when it delegated legislative power to the SEC because Congress failed to provide the SEC with an intelligible principle to guide its use of such power,
Obstacles to remove ALJs violate Article II of the Constitution, which provides that the President “take Care that the laws be faithfully executed.”
Until the Court issues its opinion in this case, the SEC will probably file most litigated actions in federal district court where, unlike in administrative proceedings, the defendant has access to full discovery, and the rules of evidence apply. Overall, the Fifth Circuit opinion presents a novel interpretation of Supreme Court precedent that was previously well-settled. The case is significant as it breaks new ground. However, the opinion’s applicability to other agencies is unknown at this point.
QUESTION PRESENTED:
Whether statutory provisions that empower the Securities and Exchange Commission (SEC) to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment.
Whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine.
Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
The Court will also be hearing what is sure to be a landmark case about the 16th amendment, which is, of course, the amendment that made armed robbery legal and constitutional.
MOORE V. UNITED STATES
The Sixteenth Amendment authorizes Congress to lay "taxes on incomes ... without apportionment among the several States." Beginning with Eisner v. Macomber, 252 U.S. 189 (1920), this Court's decisions have uniformly held "income," for Sixteenth Amendment purposes, to require realization by the taxpayer. In the decision below, however, the Ninth Circuit approved taxation of a married couple on earnings that they undisputedly did not realize but were instead retained and reinvested by a corporation in which they are minority shareholders. It held that "realization of income is not a constitutional requirement" for Congress to lay an "income" tax exempt from apportionment. App.12. In so holding, the Ninth Circuit became "the first court in the country to state that an 'income tax' doesn't require that a 'taxpayer has realized income."' App.38 (Bumatay, J., dissenting from denial of rehearing en banc).
The question presented is:
Whether the Sixteenth Amendment authorizes Congress to tax unrealized sums without apportionment among the states.
And personally I think this is going to be the case that may drastically alter a constitutional doctrine that most people agree with but which should never really have existed in the first place. Very much like the argument conservatives are making about chevron in loper bright
And finally, I have truly been saving the best for last. The Court will be hearing a huge second amendment case that I believe can be and very possibly will be the kind of major victory for gun rights that Bruen was back in their 2021-2022 session.
UNITED STATES V. RAHIMI
Whether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.
This case will touch on a number of past videos I have done both about the second amendment and criminal justice reform, that I would highly recommend watching. I would start with my video All Gun Control Is Racist… and I’ll put a few other relevant videos of mine in the show notes page as well for this case.
This case is going to be very, very important and there is going to be all kinds of people and organizations making all manner of insane claims regarding this case. Both intentionally misrepresenting and unintentionally misunderstanding this case every single step of the way. Especially if the outcome goes the way I expect it will, every gun grabber is going to go ape shit trying to convince people this case represents some cruel, evil choice by the supreme court to callously disregard the well of being of domestic abuse victims while protecting the pieces of shit that abuse them, which will of course be the completely false narrative being fed to people by the cathedral. And many people will understandably conform their opinion to that narrative. It will be incumbent upon us to understand this case and provide a rational and accurate understanding of its actual context, outcome and consequences and this is something I will be devoting a great deal of time to doing right here. So make sure you subscribe to my channel to always get the latest episodes, or better yet, head to legaleseshow.com where you can sign up for my newsletter and get updates whenever I release any new content, whether that is videos, podcast episodes or articles
There you have it folks. These are the cases that I will be focusing on. Let me know what you think down in the comment section. Which of this cases do you think will wind up being the most important…. And why? I would love to hear your answers to that in the comment section.
Is there an upcoming case that you would really like to see me cover, that I have not included on this list? If so, you may be able to get your wish. For most viewers, if you let me know if there is a case you would especially like to see me cover let me know which case that is and I will seriously consider it though I make no promises I will definitely cover it. That is, with one exception. You can sign up to become a monthly subscriber to my channel on Spotify, Substack and now you can even do so on my webpage legalesepodcast.com. Signing up at any one of those 3 places gets you exclusive access to some extra little goodies. One of these is a guaranteed topic request. Any subscriber can request any topic whatsoever and will get a whole episode of the show dedicated to that particular topic request… If you’re not in a position to become a monthly supporter, that’s, alright and regardless of that I do consider every episode request people make and more often than not I will cover a request.
One more thing I want to thank those of you who responded to my last request during my last video asking people for some suggesting of updates and new features they might like to see me add to my webpage. I appreciate everyone who took the time share their thoughts with me, there were some really good suggestions, a few I have implemented already and there will be more to come, so be looking out for that over at legalesepodcast.com
Until next time
Cartago Delenda est