Happy New Year!
A lot has happened in the first couple weeks of 2025. In fact, a massive social media company has already managed to argue before the Court, get an adverse decision, shut down for a day, and be promptly revived! Let’s get to it.
Last year, President Trump was found guilty of falsifying records when he classified a $130,000 hush money payment to adult film star Stormy Daniels as a legal expense. Given that both sentencing and the inauguration were fast approaching, Trump recently asked the Supreme Court to stay the sentencing—even though the judge had indicated he would not impose jail time.
Chief Justice Roberts, as well as Justices Barrett, Sotomayor, Kagan, and Jackson, voted to reject Trump’s request, sending shockwaves to those who had assumed the justices vote solely along party lines.
It’s just another reminder that it’s often the Supreme Court’s critics, not the Court itself, that is hyper-partisan. In the same vein, I recently wrote an op-ed for Discourse observing that hyper-partisanship and hypocrisy are killing the Supreme Court. The tl;dr is that if we want to save the Court’s already suffering reputation, we should evaluate Supreme Court decisions based on principle, not based on scoring political points.
On January 17, America woke up to the primal scream of Gen Z-ers across the nation after the Supreme Court upheld a law requiring TikTok’s parent company to divest or stop operating the social media platform in the U.S. The per curiam (that is, unsigned) opinion began with a warning: The Court was making its decision on an expedited timeline with limited knowledge about how technology will evolve in the future. Basically: Don’t be mad at the Court if the opinion doesn’t age well.
In case you’ve been living under a rock, TikTok is a popular social media platform that boasts 170 million U.S. users. Everything these users do on the app affects the content they are delivered. The company is owned by ByteDance, a private company based in China that owns TikTok’s algorithm, develops the source code, and, importantly, is subject to a Chinese law requiring all companies to turn over data and control when asked.
Last year Congress acted on concerns about potential Chinese control of TikTok’s data and operations by 1) Requiring divestiture of any foreign-adversary-controlled company generally (with some exceptions, like travel websites and Yelp), and 2) Requiring divestiture of TikTok specifically.
TikTok and two content creators sued, arguing the law violated their First Amendment rights. In its opinion, however, the Supreme Court said it wasn’t clear the Act regulates expression or that the First Amendment applies at all. Instead, the law regulates corporate structure and foreign control in a way that happens to burden speech.
But even assuming the First Amendment applies, the Court said the law passed the required level of scrutiny (which was minimal). Given that the law targeted Chinese control rather than particular messages, the Court applied mere intermediate scrutiny. And it ruled that the law satisfies that scrutiny because it serves an important purpose: preventing China from capturing a vast amount of sensitive data from TikTok’s users that could be weaponized against America for espionage purposes (i.e., tracking government employees, blackmail, recruiting assets, and other spy stuff).
True, the law is underinclusive because it doesn’t apply to several other Chinese-owned companies that engage in data collection. And true, there were less-restrictive alternatives the government could’ve used. But according to the Court, there was good reason for singling out TikTok, and the government isn’t required to adopt whatever alternatives the plaintiff would prefer.
Justice Sotomayor joined the opinion in its entirety except for the part assuming without deciding that the law implicates the First Amendment. She wrote separately to say there’s no doubt the law regulates speech: It bars other websites from hosting or distributing TikTok’s speech, it burdens TikTok’s right to collaborate with ByteDance on the algorithm, and it burdens content creators’ right to associate with their preferred platform.
Justice Gorsuch also wrote separately to make four points: 1) The Court rightly rejected the government’s proffered interest in preventing China from using TikTok for propaganda purposes, because that’s a censorial purpose, 2) He’s “pleased” the Court refused to consider the evidence the government had offered to the Court in private and shielded from the plaintiffs, 3) He’s skeptical the law is content-neutral (but the act satisfies even strict scrutiny), and 4) “Tiers of scrutiny” can be useful, but often attorneys and the Court spend too much time trying to fit laws and rights into categories rather than thinking about the actual merits. (Nice that it’s not just me saying it this time!)
The Court’s decision forced TikTok to temporarily shut down on January 18, because ByteDance could not divest before the January 19 deadline. But after President-elect Trump promised to extend the deadline so that TikTok could pursue divestiture, the company restored service less than a day later. There’s some question whether Trump actually has constitutional authority to ignore Congress’s TikTok statute, but it’s unlikely anyone will challenge his Executive Order, which extended the deadline by 75 days.
It must be First Amendment month at the Supreme Court, because the Court also heard two more prominent First Amendment cases in the opening three weeks of 2025.
The first case, Free Speech Coalition v. Paxton, asks what to do with a law that seeks to curb youth’s access to pornography but that incidentally affects access by adults. The challengers—purveyors of, ahem, adult content—argue that a law requiring age verification to access obscene materials online is subject to strict scrutiny because it burdens adults, who have a constitutional right to access that material. The government argues that the law merely seeks to block access by minors, and it is therefore only subject to rational basis scrutiny (the lowest form of scrutiny in all of constitutional law). The Fifth Circuit agreed with Texas that only rational basis applies, and the Free Speech Coalition petitioned the case to the Supreme Court.
The Court appeared likely to side with Texas. A particularly interesting bit was when Justice Gorsuch pressed the attorney for the Free Speech Coalition to distinguish Texas’s law from laws that require age verification to gamble, vote, or buy a gun. According to the coalition’s attorney, those age verification laws would only be subject to rational basis scrutiny because they don’t burden First Amendment rights, but this one requires strict scrutiny because it involves speech. To my mind, all of those laws should be judged with the same level of skepticism (but alas, I repeat myself).
The second case, Thompson v. United States, asks whether a federal statute making it a crime to make false statements during an investigation encompasses statements that are misleading, but factually true. Patrick Thompson, the defendant in that case and a member of a Chicago political dynasty, had taken out three loans totaling $219,000 before the lender went bankrupt in 2012. He did not sign paperwork for two of the loans and only repaid the bank just under $400.
When the Federal Deposit Insurance Corporation tried to recoup some of what was owed the bank, it sent him an invoice for the remaining principal plus interest on all three loans. Thompson then called up the loan servicer and said he had taken out $110,000 and had a promissory note for $110,000.
Years later, he was charged with making false statements to a federal agency. Thompson now argues that he shouldn’t have been charged, because while his statements were misleading, they were factually true, and the statute only bans false statements. He urged the Court not to interpret the statute as prohibiting conduct beyond the statute’s literal reading and argued that if Congress wanted to prohibit both false and misleading statements, it knew how to do so (in fact, it has done so repeatedly in other statutes). The government, for its part, argued that a statement is false if it conveys a message to a listener that, in context, is not true.
Some justices, like Justices Sotomayor and Jackson, questioned whether the Court needed to decide the question presented at all, given that Thompson’s statements could be considered false. Others, including Justices Kavanaugh and Gorsuch, said the Court shouldn’t focus on whether Thompson’s statements are false or misleading and should instead decide the question the Court had taken the case to answer.
On day 1, President Trump issued a flurry of EOs spanning everything from the Gulf of Mexico America to DEI in the federal government (see PLF attorney Joshua Thompson’s statement on Trump excising DEI from the federal government here). One order, rescinding birthright citizenship for unlawful and non-permanent immigrants, is likely already on its way to the Supreme Court.
The Citizenship Clause of the Fourteenth Amendment has long been interpreted as granting nearly universal birthright citizenship, with a few exceptions for ambassadors, Native Americans, and enemy aliens. The Clause was passed after the Civil War in response to the Supreme Court’s abominable Dred Scott decision, which had said that people of African descent were not citizens, and therefore Scott could not sue for his freedom. The Framers of the Clause were concerned with correcting this mistake and ensuring that there was not a permanent class of people born in America that enjoyed fewer rights solely because of their parents’ status.
But they didn’t grant every person born in the country birthright citizenship. Instead, they granted it to those born or naturalized in the United States and “subject to the jurisdiction thereof.” What does that mean? It presumably does not mean something as simple as “anyone who has to obey the law,” because nearly everyone has to obey the law (ambassadors being a notable exception). Supreme Court precedent seems to indicate it has something to do with allegiance and belonging to a separate sovereign.
The Supreme Court hasn’t had many occasions to interpret the scope of the Citizenship Clause, but in 1898 it ruled that the children of non-citizens were entitled to birthright citizenship. Some say, however, that the case came out that way only because the non-citizens were both lawful and permanent. And along those lines, Trump’s EO instructed the federal government to no longer recognize birthright citizenship for children born to unlawful or nonpermanent resident aliens 30 days after the order was issued. This includes highly skilled immigrants here for specialty jobs for years under H-1B visas.
Almost immediately after Trump issued the EO, 22 states and immigrants’ rights groups challenged it, arguing that it conflicted with the Fourteenth Amendment. Yesterday, a district court enjoined the Order while the lawsuits continue. The case will almost certainly reach the Supreme Court.
And if that was too long to read, you can watch it in 90-second video format here.
On his way out of the office, President Biden issued preemptive pardons for various public figures (Fauci, Milley) and five members of his family. Although the Pardon Power can be a valuable tool in combatting injustice, it hasn’t often been used preemptively. President Ford preemptively pardoned Nixon for any crimes related to the Watergate scandal (a move that was widely criticized at the time). But his pardon was meant to end prosecution within his own administration, whereas Biden issued pardons to constrain future administrations (and included members of his own family). Nevertheless, the Constitution grants presidents wide latitude to issue pardons—meaning people will have to confine their grievances to the public square rather than trying to take them to a court. The same goes for President Trump, who was criticized for mass pardoning (rather than, say, commuting) the sentences of 1,550 January 6 defendants.
Biden also purported to deem the Equal Rights Amendment a part of the Constitution, even though the ERA failed to secure ratification by the requisite number of states before the congressionally specified deadline. The Archivist of the United States has since said she does not intend to certify it.
As Alison Somin observed, the ERA was a constitutional redundancy because “the Fourteenth Amendment already guarantees individuals, men and women alike, equal protection of the laws.” Its intended effect was likely to subvert current equal protection law by “mandat[ing] equal treatment in areas where there are bona fide reasons for different treatment based on sex, such as with bathrooms, sports, or in the military.”
Yesterday the Supreme Court granted the government’s request to lift an injunction against the government in a case challenging the Corporate Transparency Act. The CTA requires small businesses to report sensitive personal and financial information (though it inexplicably exempts large corporations and financial firms). A group of plaintiffs had sued on the theory that while Congress can regulate interstate activity, it lacks power under the Commerce Clause to force businesses to report to the federal government regardless of their activity and merely because they exist. The district court had issued a nationwide injunction while the case proceeded, and the Fifth Circuit affirmed. In a somewhat surprising move, the Supreme Court (via its emergency or “shadow” docket) vacated the injunction, with only Justice Jackson publicly dissenting.
The result may be explained by the fact that “conservative” justices tend to disfavor nationwide (as opposed to limited or local) injunctions, and Justice Jackson has expressed aversion to the Court intervening via the emergency docket absent extraordinary circumstances. But the decision only concerned preliminary relief. The case will now continue winding its way through the lower courts on the merits, before it possibly returns to the Supreme Court for a determination of whether the CTA is constitutional.
Next week, the Court will consider forum shopping, deference to executive agencies under the Hobbs Act, excessive force under the Fourth Amendment, and last (and probably least), ERISA.
See you in two weeks—and don’t spend too much time on TikTok. I leave you with this parting gem from oral argument in the TikTok case: