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New polls: TX WI
Dem pickups: (None)
GOP pickups: AZ GA ME MI NV PA
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:

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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