SCOTUS Scoop: TikTok’s time’s up?
Happy Holidays! My gift to you is this incredibly informative (and perfectly charming) newsletter summing up the past two weeks at the Supreme Court.
TikTok time’s up?
The Court announced yesterday that it will hear arguments in TikTok’s challenge to a law requiring its China-based parent company to either sell the social media platform or stop operating in the U.S. Given that TikTok enjoys 170+ million monthly active U.S. users, perhaps this case will make talking about the Supreme Court cool (not that it isn’t already).
Congress passed the law based on concerns that China would use the app to spy on or unduly influence Americans. Chinese law evidently permits the PRC to seize TikTok’s data, and though the government did not cite any evidence of China actually doing so, legislators thought it enough of a threat to require TikTok to separate from its China-based parent.
TikTok and two of its users sued and the D.C. Court of Appeals upheld the law. Though the court applied strict scrutiny—which usually dooms a challenged law—it used the traditional deference afforded government in national security matters to water down that scrutiny, resulting in something more like medium-ish scrutiny.
It noted that Congress had studied the issue and rejected multiple alternatives, which seemed good enough for the court. And though TikTok disputed just how much data it collects and called the government’s surveillance concerns “speculative,” the court reasoned that the company did, in fact, collect a good deal of data and would likely submit to China’s request to hand it over if it made one. Congress shouldn’t have to wait for that to happen, it said, before acting.
Courts are always deferential when the government invokes national security. The spicier part of the decision was its holding that the government has an interest in censoring misinformation or propaganda. The court concluded that this type of censorship actually bolsters First Amendment principles—an argument that, as one amicus brief pointed out, harkens back to proposed censorship laws during the Red Scare. The court also deemed the law innocuous because it does not ban or even control certain content but rather merely seeks to change TikTok’s ownership. Thus, the content might even stay the same after the company’s ownership changes.
The court sidestepped, however, the fact that divestment effectively amounts to a ban. It will be exceedingly difficult for the companies to separate and, even if they did, users would lose much foreign content by virtue of divestiture. The court also gave exceedingly short shrift to the argument that the law is content- and speaker-based and wildly underinclusive, because it only targets TikTok.
Because the deadline for divestiture is looming, TikTok sought an emergency injunction and expedited hearing. The Supreme Court denied the injunction but set oral arguments in the case for January 10, just nine days before Congress’s deadline. So the Court will have to make its decision quickly if it wants to act before the law goes into effect.
What PLFers are no longer watching…
Last week the Supreme Court denied PLF’s request that it hear our case challenging Boston’s discriminatory admissions scheme for competitive K-12 exam schools. While disappointing, the denial elicited two separate statements from the justices suggesting that the rejection wasn’t so much about the merits, but about the timing.
Justice Neil Gorsuch, for example, wrote that because the school had changed its admissions policy, it “diminish[ed] the need for [the Court’s] review.” He added that the denial should not be seen as an approval of the original discriminatory admissions scheme and signaled his agreement with Justice Samuel Alito about the merits of the case.
Justice Alito (joined by Justice Clarence Thomas) wrote a forceful dissent arguing that discrimination is still discrimination even when the government doesn’t get results as discriminatory as it wants. He also warned that the Court’s refusal to step in (first with PLF’s petition in the Coalition for TJ case, and now with the Boston case) threatens to “perpetuate race-based affirmative action in violation of Students for Fair Admissions.
Add this result to my pile of gripes (a Festivus, if you will) associated with government gamesmanship and so-called “judicial restraint.” Too often the government changes its policy to avoid getting an adverse decision on the merits, and judges (in the name of restraint) refuse to continue the case.
Justice Alito, Justice Thomas, and I are big mad about standing doctrine
The same day, Justice Alito (again joined by Justice Thomas) wrote statements respecting denial in two other cases: one concerning Hawaii’s licensing scheme for firearms and the other about a public school district’s policy assisting children in transitioning without their parents’ consent or knowledge.
In both cases, the justices called out the uses and abuses of standing doctrine, which requires plaintiffs to demonstrate an injury before bringing a lawsuit. While it makes some sense to interpret the Constitution’s “case or controversy” requirement as requiring an actual injury, standing doctrine has become wildly untethered from the Constitution’s text and is often used arbitrarily to keep meritorious claims out of court.
In the first case, the Hawaii Supreme Court ruled that the plaintiff could not use the unconstitutionality of Hawaii’s firearms licensing scheme as a defense in his criminal proceedings because he had never applied for a license. Justice Alito wrote, “That conclusion contravenes the settled principle that Americans need not engage in empty formalities before they can invoke their constitutional rights.”
In the second case, the Seventh Circuit ruled that a group of parents could not challenge a school district’s transition policy for its students unless the parents could show that their child was transitioning or considering a transition. But, as Justice Alito noted, “the challenged policy… specifically encourage[s] school personnel to keep parents in the dark.” Thus, “the parents’ fear that the school district might make decisions for their children without their knowledge and consent is not ‘speculative.’ They are merely taking the school district at its word.” He and Justice Thomas would’ve granted the petition to reconsider some of the Court’s earlier standing cases.
Notably, neither of these opinions are about the underlying merits of the case; they’re about how hard it should be to assert your constitutional rights in court. And not two weeks after these statements, the justices added two standing cases to their docket. The first asks whether Medicaid recipients have standing to sue over their state’s decision to prohibit Medicaid funds from going to facilities that perform abortions, and the second will decide whether fuel producers have standing to challenge California’s role vis-à-vis the federal government in regulating greenhouse gas emissions.
Last-minute holiday gifts for your favorite Supreme Court lover
You’re going to need expedited shipping, but here’s a few gift ideas for your SCOTUS-loving friends (or yourself!).
For the Supreme Court bookworm
Get Justice Neil Gorsuch’s new book, which tells the tale of regulation gone awry through captivating vignettes. I really loved it. If you want my longer take, I wrote a review about it here.
For the Supreme Court bookworm with kids
I enjoyed explaining the Supreme Court to my kids through the book Marshall the Courthouse Mouse. Like any good libertarian, I concluded the book was largely libertarian (except for the fleeting reference to compulsory schooling, but let’s ignore that). The book tells the tale of an intrepid mouse attorney who bravely fights a law that restricts mice from eating the cheese of their choice and takes his case all the way up to the Supreme Court.
But back to adults:
Your stressed-out litigator friend could definitely use some time meditatively putting together this Supreme Court lego set.
I came up with these brilliant ideas myself. If anyone turns them into moneymakers, I expect a shoutout (or a royalty check):
- A legal nerd alternative to Elf on the Shelf: the Chief on the Wreath? The Judge on the Fudge? Barrister on the Banister? RBG on the Tree?
- A hot sauce for those who like both their legal takes and their chicken wings spicy. Call it “Spicy Opinions Only.”
- A cooking apron that looks like a judge’s robes. Pick your favorite: one based on RBG’s famous jabots or Chief Justice
- Rehnquist’s jazzy striped robes. Pair it with a cookbook written by Justice Ginsburg’s husband, Marty.
The Court will return on January 10 to hear the TikTok case. The following week it will hear five more cases—including a highly anticipated argument concerning what level of judicial scrutiny applies to a law aimed at protecting children from sexual content, but that significantly burdens access to that content by adults.
With warmth and wishes for a merry, stress-free holiday to all of those who don’t have to finish a brief over the break.
Anastasia
