Sorry, another day with not too many items. The ones we do have are on the long side, and took a while to put together, especially the debate item.

Supreme Court Releases 1-1/2 Major Decisions

The Supreme Court is following a non-standard schedule this week, releasing opinions on Wednesday, Thursday and Friday. We only learned this after Monday's post—in which we described the usual Monday/Thursday schedule—went live.

Yesterday, the Court delivered its opinion in Murthy v. Missouri, which is the case filed by people angry at the Biden administration for asking problematic social media posts to be removed. Here's lawyer-reader A.R. in Los Angeles:

Another day, another Supreme Court rebuke of the Fifth Circuit. The offense this time was to find that government communications to some social media outlets amounted to "coercion" to remove certain content, which violated the plaintiffs' first amendment rights. Not so fast, says the Court in a 6-3 opinion.

Associate Justice Amy Coney Barrett wrote for the majority that the plaintiffs, five social media users and two states (Louisiana and Missouri), lacked standing to seek a preliminary injunction. The Court, therefore, reversed the Fifth Circuit's decision affirming the preliminary injunction granted by the district court. Notably, the plaintiffs' suit did NOT include, as defendants, the platforms that allegedly censored their content. The Court first noted the high burden on the plaintiffs to succeed on a motion for preliminary injunction; they must show: (1) a likelihood of success on the merits and (2) irreparable harm without an injunction. The Court then pointed out that the lower court allowed "extensive discovery" and that the record included over 26,000 pages, and implied that the plaintiffs seemed to want the Court to dig through that information to find the requisite connection between their allegations of censorship and government action. The Court reminded the lower courts and the parties that "judges are not like pigs, hunting for truffles buried in the record."

The plaintiffs could not establish that the platforms' efforts to demote or otherwise censor the individuals' posts had anything to do with governmental communications with social media platforms, so the plaintiffs could not meet the standing elements of causation, traceability or redressability. The Court found that the record showed that platforms like Twitter and Facebook had moderation policies in place long before agencies began communicating about the pandemic and misinformation campaigns.

Critically, the Court specifically did not express any opinion as to whether the Fifth Circuit applied the correct standard to determine when the government's communications "transform private conduct into state action." So, with the election coming up, while this case gives the government some breathing room, I imagine agencies tasked with ensuring election integrity and security will be somewhat more circumspect in trying to rein in misinformation on social media. Barrett did note, however, that mere communication is not enough—it must be "coercive" or "significant encouragement." Good thing they cleared that up.

Note that this decision doesn't end the case, but given the Court's holding, the government should succeed on a motion to dismiss on remand.

Meanwhile, if you didn't follow the news yesterday, you might wonder how the Court could release half a decision. Well, in Moyle v. Idaho, also known as the EMTALA case, the Court is deciding whether or not parts of the Idaho ban on abortion are in conflict with a federal law requiring that emergency care be rendered to all patients, with no exceptions. Yesterday, employees of the Court accidentally posted a draft of that ruling. It's improbable that someone wrote an entire fake Supreme Court decision and somehow got it posted, so it's likely that the accidental posting is similar or identical to the actual decision, and that the actual decision will also be a 6-3 decision nominally in favor of abortion rights. Here is A.R. again:

Another leaked abortion case—despite the press on this, I do think this was an honest error by the information office. They will probably release it officially today (and maybe even intended to release it yesterday but pulled it back for some reason).

It's another punt on an abortion rights case right before an election—coincidence? As (V) and (Z) like to say, "we report, you decide." In Court-speak, the majority holds that the stay they granted earlier this year was "improvidently granted" so they are lifting the stay and will let the case play out before it comes to them again. This means that the lower court's injunction of the Idaho law remains in effect for now, and women will be able to get emergency abortion care.

Barrett, if the opinion remains the same, wrote for the majority and held that the changed circumstances since the case was filed, such as the legislature exempting specific procedures from the law's reach and the Supreme Court narrowing the definition of "abortion" under the law and broadening the allowed exceptions, justified lifting the stay because the injunction "will not stop Idaho from enforcing its law in the vast majority of circumstances." She also notes that the government conceded that the conscience objections apply here as well and that an emergency abortion can never be required solely due to mental health reasons. The clear implication is that both of these laws can co-exist.

Barrett concludes that granting cert before judgment was an error here. Ominously, she hints that another avenue raised only on appeal should be pursued more fully in the lower court: "...whether Congress, in reliance on the Spending Clause (sic), can obligate recipients of federal funds to violate state criminal law." So, we can look forward to the Court finding another way to gut reproductive rights when the case inevitably comes back to them—just as soon as this pesky election is behind them.

We will add a bit more reading-between-the-lines here. From the decision, it is clear that there were four votes to resolve the case on the merits, right now. Justice Ketanji Brown Jackson was ready to strike down the Idaho law, while Justices Neil Gorsuch, Samuel Alito and Clarence Thomas were willing to invalidate the federal law. Had any other justice been willing to make a finding on the merits, then we would have had a final decision right now, as opposed to a punt.

Undoubtedly, Justices Sonia Sotomayor and Elena Kagan are on Jackson's side. However, neither of them chose to force a resolution. The only plausible explanation is that they know when a final decision is made, it's going to go against them. So, they made a choice to at least delay that outcome, and extend protections for some small amount of abortion access. Meanwhile, the remaining conservatives chose not to force a resolution either. The only plausible explanation, as A.R. suggests, is that they didn't want to give the Democrats more ammunition to campaign with. So, the indications are pretty clear that when the Supreme Court finally deals with this case for keeps, it's going to be either 5-4 or 6-3 to curtail or strike down the federal law and uphold the Idaho law. Kagan and/or Sotomayor could have forced a resolution now, and made the conservatives own it, but they clearly felt the lives that will be saved during the delay were more valuable.

There are 9 more decisions remaining. It's unlikely that the Court will do such a massive dump in just 2 days, so the calendar will probably be extended into next week. Of course, the one that everyone is looking for is the presidential immunity case; a late release today would maximize the distraction provided by the debates, while minimizing the potential for the moderators to ask a question about the decision. So, keep your eyes peeled. (Z)

It's Debate Week! (Part IV)

Today's the day. Here's a rundown of the various debate-related stuff that is percolating as the countdown to the debate between Joe Biden and Donald Trump reaches zero:

• What to watch for: The mainstream media are not always the most creative folks. Consistent with that, there was a plethora of "things to watch for" pieces yesterday. Here are a few of those lists:

  ABC News:

  • Do any gaffes or knockout punches break through?
  • Character or policy?
  • Offense v. defense
  • Early timing (of the debate, relative to the election)
  • Who does the novel format help?

  
  The New York Times:

  • Abortion vs. immigration: The debate within the debate
  • Does Trump come out brawling?
  • How does Biden navigate the age question?
  • Who handles the new format better?
  • Who can generate more memorable (meme-able) moments?

  
  Financial Times:

  • Are these men fit enough for another four years?
  • Will Biden target Trump over his felony convictions?
  • Can Biden turn the debate to the fate of US democracy?
  • Who will win on the economy?
  • How will immigration, abortion and war feature?

  
  Reuters:

  • Fitness in focus
  • Temperament test
  • Disinformation warning
  • Narrative traps ahead
  • No studio audience

  
  Newsnation:

  • The economy
  • The border
  • Abortion
  • Trump and Hunter Biden convictions
  • Guns
  • Biden's performance
  • False 'stolen election' allegations

  There are some clear recurring themes. The ones we see are: (1) The impact of the new format, (2) How well the candidates deal with the hot-button issues, (3) Biden's age and Trump's temperament and (4) Who produces the most meme-y moments.
  
  
• Does It Matter?: On Monday, we wrote that "[T]his week's presidential debate could be the most impactful in recent memory. Maybe the most impactful ever." On Tuesday, we explained at some length why we see it that way. After the Tuesday post went live, we got a number of e-mails pooh-poohing the notion that this debate will be meaningful, or that any debate will ever be meaningful again.
  
  Time will tell, of course, but the preliminary indications favor our viewpoint. The Associated Press/NORC published a new poll yesterday, finding that 60% of U.S. adults are either "extremely" or "very" likely to either watch the debate live, watch clips after, and/or read coverage of the debate. Meanwhile, 74% of respondents think the debate is either extremely important or somewhat important to Biden's campaign, while 68% think so for Trump's campaign. PBS News/NPR/Marist also released a new poll covering the same ground. Their numbers say that 61% of U.S. adults expect to watch part or all of the debate while 24% will follow the news coverage. They did not ask a follow-up question about importance, however.
  
  
• The Other Debate: As chance would have it, there was a debate in the U.K. last night. We felt we would be remiss if we didn't at least mention it. According to the pundits we looked at, PM Rishi Sunak came out swinging and handily outdueled Leader of the Opposition (and soon-to-be PM) Sir Keir Starmer. According to insta-polls, the debate was a draw. Either way, nobody doubts that Sunak and the Conservatives are going to take a drubbing when the U.K. votes next week. It might be July, but the PM's gonna be all wet.
  
  
• The Other Other Debate: There are actually going to be two debates tonight. Although it may be more accurate to say a debate and a "debate." Robert F. Kennedy Jr., who was denied a spot at the grown-ups' table, is staging his own debate, which he calls "The Real Debate." It will take place in a Los Angeles studio, will start at the same time as the Biden-Trump debate, and will be streamed on eX-Twitter and on a website that the Kennedy campaign set up for the purpose, TheRealDebate.com. It is not clear who, exactly, Kennedy will be debating. Maybe the voices in his head.
  
  
• No Fact-Checking: CNN announced that it will not do real-time fact-checking during the debate. That's not much of a surprise; it's difficult to do that properly under time constraints.
  
  We all know who will benefit from this decision, by not being called out on his constant stream of lies and falsehoods. Nonetheless, Trump got on his low-traffic social media site to complain about how this is a conspiracy against him:

  Crooked Joe Biden's "Handlers" are loudly and profusely complaining that there will be no Fact Checkers during the Debate on Thursday. Actually, that is just DISINFORMATION—They could not be happier, because there is nobody that's as loose with the TRUTH as Crooked Joe. From the 51 Fake Intelligence Agents, to Russia, Russia, Russia, to the Fake "Suckers and Losers Story" he created about our beloved Military, to cheating in College and saying he was first in his Law School Class when he was actually LAST, to claiming he marched for Civil Rights, drove trucks, and has a 6.2 Handicap (He can't hit the Golf Ball 10 yards, but that's a minor detail!), and so many more falsehoods, the man is a walking LYING MACHINE, and a Fact Checker's DREAM. Maybe we should call him "Lyin' Joe" in addition to Crooked?

  The amount of projection that Trump does really is remarkable, even after all these years.
  
  
• Very... Fair?: Despite the endless claims to the contrary, CNN has, by all indications, played things down the middle. And, as NBC's Chuck Todd pointed out yesterday, the debate environment is set up to give Trump every opportunity to look presidential. He will not easily be able to talk out of turn, nor will he have a boisterous, Trumpy crowd to goad him into going off the rails.
  
  Todd is right about the fair environment, we think, but the impact could potentially cut both ways. If Trump isn't being fed by the things that normally feed him, he might be very flat. Or, he might compensate by being even more over the top than usual. And if he's running wild and there's no crowd noise—which works as a signal to the viewing audience about how they should be responding, like a laugh track does—then it looks extra strange and inappropriate.
  
  
• Don't Count Your Chickens: Plenty of commentators, like Rex Huppke of USA Today, still think Trump isn't going to show up. If so, that would be a bold move, indeed. The base would see it as "sticking it to the establishment," presumably, but would any other voters feel that way? Or would it make the non-base voters see Trump as a coward who can't handle the heat?
  
  Over the weekend, we still entertained the possibility of Trump bailing out, but we now think it's 99% he'll be there. However, the former president's habit of missing debates did remind us of one thing: He is going to be rusty. In the last 7+ years, he's debated a grand total of two times, given that he skipped one of the presidential debates in 2020 and all of the Republican candidates' debates this cycle. Trump rarely subjects himself to questioning from anyone, other than people who will feed him a steady diet of softballs. His debate prep has involved zero mock debates. And this new format, with no opening statements, means he won't be able to warm up by reciting a pre-scripted set of remarks. The first issue could be abortion, could be the economy, could be his criminal conviction—he has no way to know. So, he could stumble out of the gate.
  
  Note that some of these things also apply to Biden, but at very least he has to deal with the press corps on a regular basis, and he's been prepping with actual mock debates. So while he could stumble, too, he's at less risk than Trump is.
  
  
• Very Stimulating: Republicans are absolutely falling all over themselves to try to curry favor with the Dear Leader. And they seem to have decided that "Biden is on drugs" is an excellent angle for doing so. Earlier in the week, we noted Rep. Ronny Jackson's (R-TX) threat to send a letter to the President, demanding he take a drug test before and after the debate (Jackson did send the letter, cc'ing it to every member of the Cabinet and to VP Kamala Harris, presumably on the theory that it would persuade them to invoke the Twenty-Fifth Amendment and remove Biden).
  
  In yesterday's post, we added to the list Rep. Eric Burlison (R-MO), who appeared on several cable networks to peddle his theory that the mind-altering substance that Biden is using/will use is Mountain Dew. As part of that, we wrote that "we would actually advise against Mountain Dew because the amount of caffeine in one of those is enough to cause jitters." Quite a few people wrote in to point out that Mountain Dew is not more caffeinated than coffee (and is not much more caffeinated than the Diet Cokes Trump guzzles), and that if it causes jitters, that would be due to excessive consumption or because of the tremendous amount of sugar (almost 50g) in a single can. We will defer to the expertise of the readers; the last time (Z) drank Mountain Dew (the 1980s), the drink was in an arms race with the now-defunct Jolt Cola to see which could incorporate more caffeine.
  
  In any case, yesterday, Rep. Andy Ogles (R-TN) went and did Jackson and Burlison one better. He's introduced a bill (which will never see the floor of the House, of course, much less become law) that would require Biden to file a report anytime he takes any mind-altering stimulant. Coffee? Report. Tea? Report. Chocolate bar? Report. Tiramisu? Report.
  
  Reader M.S. in Las Vegas, NV, suggests that Biden take lemons and make... Mountain Dew out of them, writing: "At the start of the debate, I'd love for Biden to say something along the lines of: 'Water? I was promised some high-caffeine Mountain Dew! I thought that was part of our secret agreement, Jake?'"
  
  
• Toady Watch 2024: The candidates are allowed to have some level of entourage accompany them to the debate. Obviously, security details and close family members are included, but who else? Earlier in the week, Trump implied that his would-be running mates would be there, too. Not so, as it turns out, as they are not included as part of the approved entourage. However, the RNC is hosting a watch party down the street from where the debate is being staged, and Sens. J.D. Vance (R-OH), Marco Rubio (R-FL) and Tim Scott (R-SC); Reps. Elise Stefanik (R-NY) and Byron Donalds (R-FL); Gov. Doug Burgum (R-ND) and former HUD Secretary Ben Carson have all indicated they will be there.
  
  
• More Sports: We ran a lengthy list of sporting events yesterday, and... were once again reprimanded due to our exclusion of UEFA EURO 2024 fixtures. In fact, the first round of that tournament concluded yesterday, while the round of 16 will not commence until Saturday. There are no games today. We confirmed that before posting yesterday.
  
  That said, we did miss the U.S. Olympic trials in gymnastics and track and field, the presentation of teams in the Tour de France (the actual race starts Saturday), a pickleball tournament in Orange County, CA, and a red-hot mah-jongg tournament in Scranton, PA. Of course, these things could only possibly matter if they are broadcast after 6:00 p.m. ET today. With that in mind, it pretty much narrows the list down to a half-dozen baseball games, three WNBA games, and the Copa América match between Uruguay and Bolivia.
  
  
• Prop Bets: BetOnline is an offshore sports book that accepts bets from the United States. Whether that is legal or not is an excellent question. In any event, to get some publicity, the book is offering a bunch of prop bets on the debate. Here are a few examples, along with the implied odds:
  
  
  • Whose first answer during debate will be longer? Biden 56%, Trump 52%
  • First to mispronounce politician's name: Biden 75%, Trump 33%
  • First to interrupt a moderator: Biden 25%, Trump 83%
  • First of these phrases to be uttered: They hate our country 62%, Black lives matter 44%
  • First issue to be mentioned: Border 70%, Democracy 38%
  • Mentions of the word "dictator': Over 7.5 54%, Under 7.5 54%
  • Falsehoods from Trump: Over 15.5 67%, Under 15.5 41%
  • Use of "folks" by Biden: Over 4.5 54%, Under 4.5 54%
  
  The percentages don't add up to 100% because the house's cut (the vigorish) is incorporated into the odds.
  
  
• Bingo!: For our part, per readers' requests, we have put together a couple of related games. First, thanks to all the readers who sent in suggestions; we narrowed our bingo squares down to these 30 possibilities:
  
  
  • Abortion
  • Any Asian country
  • Any European country
  • A president other than Biden or Trump
  • Biden: "Come on, man"
  • Biden: "Fascist" or "Fascism"
  • Biden: "Malarkey"
  • Biden: "Prescription drugs"
  • Biden: Trump's conviction
  • Border or immigration
  • Candidate told not to speak out of turn
  • Complaint about debate rules
  • "Corrupt" or "Deep state"
  • COVID-19
  • Hunter Biden
  • Inflation or cost of living
  • "Netanyahu" or "Hamas"
  • January 6
  • Any Biden Cabinet member
  • Any First Lady
  • "Presidential immunity"
  • "Pride month" or "LGBT"
  • "Putin" or "Zelenskyy"
  • Reference to any Constitutional amendment
  • "Ten Commandments"
  • Trump: "Best or worst [X] ever"
  • Trump: "Unfair" or "Unfairly"
  • Trump: "Witch hunt"
  • Trump: Any wild animal
  • Trump: Talks into silenced mic
  
  A few guidelines:
  
  
  1. For anything without quotation marks, any clear allusion to that general topic will count. So, for abortion, for example, any use of that word, or Dobbs or Roe or "reproductive choice," etc.
     
     
  2. For anything with quotation marks, the exact word or phrase (or a close variant of that exact word or phrase) has to be used. So, "Putin" counts but "Russian leader" does not. "Corrupt" or "corruption" count, but "abuse of power" does not.
     
     
  3. For anything with a candidate's name, it only counts if that candidate says or does it. Otherwise, it can be either candidate or the moderators.
     
     
  4. Inadvertent references count. If Trump talks about "Hillary's e-mails," she's a first lady. If Trump mentions Vicente Fox, a fox is a wild animal.
  
  If you wish to play Bingo on your own, or with fellow viewers, we've put together a set of 30 Bingo cards you can download here as a PDF.
  
  It doesn't work to run a sitewide Bingo game; there would either be a 100-way tie for first, or we'd have to create so many variant cards it would take hours to score. So, for those who want to play a sitewide game, we've put together something we did once before. With help from a group of readers, we've rated the 30 items from most to least likely to be said/to take place during the debate. You have to pick six things you think will be said/will happen at any time during the debate. Riskier picks are worth more points, safer picks are worth fewer. If you want to participate, make your picks here. Don't forget to include your initials and city, and to answer the tiebreaker question.
  
  Incidentally, we could use a couple more volunteers to help us with "scoring," by which we really mean "identifying when the various things on the list occur." If you're willing, let us know at comments@electoral-vote.com
  
  
• Where to Watch: Just to run it down again, there are lots of ways to watch the debate. To start, reader G.L. in Schenectady, NY, advises that the various online TV listing services, like titantv.com, do a good job of listing exactly what national and local stations will be carrying the debate. That said, Schenectady is only about 200 miles from the Canadian border, so maybe take that advice with a grain of salt.
  
  There are plenty of streaming options. Here are a few of them:
  
  
  • CNN stream on CNN.com
  • CNN stream on YouTube
  • C-SPAN stream on cspan.org
  • USA Today stream on YouTube
  • PBS stream on YouTube
  
  The four major broadcast networks, along with all the CNN properties, MSNBC, Fox "News," Fox Business, NewsNation, C-SPAN 2, Bloomberg, and "News"max are among the national broadcasters that are set to carry the debate. Cartoon Network has not announced their programming schedule yet, so maybe them, too.
  
  Finally, because we know some readers want a reminder, here are the details again for the chat being hosted by B.J. in Arlington, MA:

  I've created a chat room on Slack for this purpose. Anyone can join via this invite link: https://join.slack.com/t/electoralvote/shared_invite/zt-2l6nlrjd3-kIg6wVCXMn75AP~eByMTEQ
  
  When you sign up, set your "display name" to your initials and location, like on the Electoral-Vote.com weekend posts, so we can recognize each other and also to preserve everyone's privacy. For example, I've set mine to "B.J. in Arlington, MA."
  
  After accepting the invitation to join the chat room, join the #debate-june2024 channel. The direct link to that channel is https://electoralvote.slack.com/archives/C079ASY9EBU. I'll be in the room on Thursday, as soon as I get my kids to bed (which may or may not be by 9:00 p.m. ET).

  B.J. tells us that 40+ readers have already signed up.
  
  
• Insta-poll: "Oh," as Columbo might say, "just one more thing." We put together a short insta-poll for readers to complete after the debate, if they are interested. It's four questions:
  
  
  1. Who do you think HELPED themselves with this debate performance
     
     
  2. Who do you think HURT themselves with this debate performance (note that you may select up to two options)?
     
     
  3. On a scale of 0-100, where 0 is "no effect," 50 is "a moderate effect," and 100 is "a profound effect," how much do you think this debate will affect the presidential race?
     
     
  4. Do you have a comment on the debate?
  
  If you care to participate, please get your response in after the debate is over (obviously) and before 2:00 a.m. ET. We'll reveal the numbers and we'll have some reader comments in tomorrow's posting.

The fun starts at 9:00 ET tonight! (Z)

Today's Presidential Polls

Wisconsin went for Joe Biden, 49%-48% in 2020. Texas went for Trump 52%-46%. So, both these polls are pretty much right in line with the last election. (Z)

State	Joe Biden	Donald Trump	Start	End	Pollster
Texas	43%	48%	Jun 11	Jun 20	U. of Texas
Wisconsin	51%	49%	Jun 12	Jun 20	Marquette Law School

Click on a state name for a graph of its polling history.

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