Welcome to SCOTUS Scoop
Note: The following is a preview of SCOTUS Scoop, a new biweekly email newsletter from Pacific Legal Foundation attorney Anastasia Boden. During the Supreme Court term, Anastasia will be helping subscribers understand what’s happening at the Court, what certain cases mean for liberty, and what exactly the justices are saying.
Tomorrow marks the end of the first two weeks of the October 2024 Supreme Court term. There’s no other way to say it: This term is looking decidedly less thrilling than previous ones. But it’s still early. And there are a few exciting cases to look out for. (Ghost guns! Vaping!). You can check out a little preview of the term I wrote here.
Most of the Court’s current docket concerns the interpretation of various federal statutes. But not to worry: Wonky statutory issues can be cool, too!
Alabama wants to make it harder to sue state officials
In Williams v. Washington, argued on the first day of the term, the Court considered what civil rights plaintiffs have to do before bringing their claims under a vital federal statute titled 42 USC § 1983. I happen to love Section 1983. It’s one of our nation’s most important civil rights statutes, and PLF frequently relies on it to get into court.
But as I can attest, the government really doesn’t like being dragged into court. Government lawyers will therefore come up with all sorts of procedural arguments to keep plaintiffs out. They’ll argue you’re not injured enough, or the case is not “ripe” enough (meaning you can’t bring the case just yet; you have to wait). And then, when you wait, they’ll say you waited too long and the case is now moot. In extra-special cases, they’ll argue that the case is simultaneously unripe and moot—a real head-scratcher.
Another argument that government attorneys trod out is that plaintiffs must exhaust all available state administrative proceedings before going to federal court. As Justice Elena Kagan put it at oral argument, that’s like the government saying that before you can bring a Section 1983 lawsuit alleging improper use of police force, you have to go through three levels of review at the police department first.
The Supreme Court has said that plaintiffs do not have to exhaust administrative proceedings before bringing a Section 1983 claim in federal court. But this case involves a Section 1983 in state court. And the state in question, Alabama, basically argues, “That’s different”—because states have wide leeway to craft their own jurisdictional rules. Also, the government attorney claimed that the state’s exhaustive process merely facilitates the claim, not impedes it.
In other words, by forcing you to jump through hoops, Alabama says it’s helping you get your claim to court! That characterization didn’t sit well with Justice Sonia Sotomayor, who noted that at least one plaintiff had been told he’d missed the appeal period and therefore forfeited his lawsuit because he was in the ICU on the ventilator during the state proceedings.
Justice Brett Kavanaugh similarly observed that contrary to the state’s characterization of helping plaintiffs, nonprofits ranging from the ACLU to religious organizations had submitted briefs saying exhaustion requirements “grind religious [and other public interest] litigants into submission before they are able to have their claims heard in court.”
The particular exhaustion requirement challenged in this case was especially absurd. The plaintiffs had sought to bring a due process claim in state court on the basis that the state’s appeals process was long and unfair. But in order to bring that claim, they were told they first had to exhaust… the very state proceedings they were challenging as long and unfair.
The plaintiffs argue that Section 1983 preempts all exhaustion requirements while Alabama argues that it can never preempt state jurisdictional rules. Judging by oral argument, neither party will get everything they want. Instead, the justices seem likely to say either that jurisdictional rules can be preempted in certain circumstances—for example, because they are particularly onerous or demonstrate hostility to Section 1983 claims—or that this specific exhaustion rule is preempted because it makes it effectively impossible to get into court.
‘Ghost guns’ case asks whether ATF is applying or rewriting a federal statute
On the second day of the term, the Court considered whether ghost guns are “firearms” under the federal Gun Control Act of 1968. Ghost guns can be assembled at home using a kit and typically lack serial numbers. DOJ contends that these kits qualify as “firearms” under federal law, meaning sellers must secure a license, keep sales records, and conduct background checks, and manufacturers must mark the parts with a serial number.
The Act defines a “firearm” as any weapon which is or “may readily be converted to expel a projectile by the action of an explosive,” as well as “the frame or receiver of any such weapon.” The Department of Justice contends that ghost guns qualify because the kits and their unfinished frames and receivers “can be readily converted” to their intended purpose. The challengers argue that the kits do not qualify because they lack adequately finished frames or receivers, which is a pre-requisite under the statute.
The so-called conservative justices appeared concerned about potential liability for sellers who have sold parts kits while genuinely believing that they were abiding by federal law, or who buy parts alone that can be “readily converted” into weapons. The liberal justices seemed concerned with manufacturers exploiting what they view as a loophole in the law. But as the manufacturers’ attorney argued, “complying with a statute is not circumventing it.” The justices might think what the plaintiffs are doing is exploiting a loophole, but that loophole is for Congress to fix, not the Court.
I appreciated this moment of levity from Justice Samuel Alito at oral argument:
The Justices… they’re just like us.
If you challenge a bad law in court, who pays attorney fees?
The Court also heard a case involving whether plaintiffs in Section 1983 cases can recover fees if they win early relief in the form of a preliminary injunction and the legislature later repeals the law, rendering the lawsuit moot. Here, the plaintiffs challenged Virginia’s practice of restricting people’s driver’s licenses when they fall behind on paying fines or other penalties (the government really knows how to keep people in poverty, amirite?). The plaintiffs won a preliminary injunction and later, after years of litigating, the legislature changed its law.
Federal law creates an exception to the American rule requiring parties to bear their own attorney fees. Under Section 1988, a “prevailing party” in a civil rights lawsuit may recoup from the losing party. The question is, have you prevailed if you secured a preliminary, but not a final, judgment—because the case was mooted before you could get to the end?
The case brought me a bit of PTSD considering just how many times I’ve brought a lawsuit and the government has capitulated rather than fighting me in court. I will always be happy to have made the world a bit freer than it was the day before, but it can be frustrating when the government deprives you of lasting precedent by deliberately mooting your case.
Some Justices were concerned that civil rights plaintiffs would be deprived of fees when they’ve spent the time and money to bring a lawsuit and effectively secured everything they wanted, but the case was mooted before a final decision. But other Justices were concerned about departing from a brightline rule of requiring a final judgment. A new rule focusing on whether the plaintiff got what they wanted would invite questions about what the party really wanted in the first place, and just how much they need to prevail to prevail? What if they win an early injunction or other motion on an issue that’s only tangential to the case? And what about the unfairness that would result where a case is mooted for reasons outside the parties’ control, thus depriving the early loser of getting that loss reversed in the long run? But the legal question is not about fairness, it’s about what Congress wrote.
I left my sympathy for EPA in San Francisco
PLF is no stranger to lawsuits involving San Francisco. Nor is it a stranger to lawsuits involving the Environmental Protection Agency. Usually, we’re suing one of them. It’s thus surprising to see a lawsuit that pits San Francisco against the EPA and puts the City on the side of miners, farmers, and other small businesses.
In City and County of San Francisco v. Environmental Protection Agency, San Francisco challenged the EPA’s practice of including vague, standardless standards in their Clean Water Act permits. I have to admit, there’s something satisfying about seeing the government on the receiving end of difficult government. Welcome to our world, San Fran!
The Clean Water Act creates a permit system so that cities and businesses can obtain permits for unavoidable discharges into water bodies. One of the Act’s primary purposes was giving people certainty over their legal obligations and their potential liability for violations. But San Francisco alleges that the EPA’s current practices make it basically impossible for it to know how to comply with the permit conditions, since the EPA doesn’t dictate how much the City can discharge, but instead imposes generic water quality prohibitions. That is, the EPA judges San Francisco based not on its own behavior or what it discharges, but rather by the water quality in the San Francisco Bay. That’s a problem for San Francisco, since water quality can dip for reasons entirely outside its control.
San Francisco argues the EPA does not have the authority to include generic water quality standards and instead must list specific restrictions on the permitholders’ behavior.
According to the EPA, permitholders should love the current process, because it allows the EPA to issue quick permits rather than resorting to a long, dragged-out process that requires crafting specific prohibitions for each permit applicant. Justice Kagan seemed to echo this sentiment, stating that some people actually prefer more “flexible” general standards over specific prohibitions. (She seemed to think San Francisco’s quibble with the practice is simply a policy dispute.) But as Justice Kavanaugh pointed out, the EPA’s argument that people actually like this scheme is belied by the several amicus briefs filed by the supposed beneficiaries themselves.
The EPA also argued that it actually prefers specific prohibitions; it just doesn’t always have enough information to impose them. But as PLF VP for Legal Affairs Jim Burling recently wrote, “If there is one thing a bureaucracy loves more than power, it’s ambiguity in the laws it enforces. Through ambiguity, an agency maintains maximum discretion over the regulated public.”
At bottom, some Justices were concerned about the EPA’s ability to effectively regulate, while others were concerned about the potential unfairness to permitholders, who now can be left on the hook for millions (San Francisco is on the hook for over $1 billion) despite their best efforts, and even for behavior outside their control. Notably, even if the Court rules that the EPA has the power to impose general standards, most of the Justices agreed that permitholders would have other recourse (like a due process challenge) for truly vague and arbitrary permit conditions.
The Court won’t hear cases again until November. But here are some things to keep you busy in the meanwhile:
The Anastasia Round-Up (in which I prove my value to my employer):
Here’s a book review I wrote for The Dispatch of Justice Neil Gorsuch’s new book with Janie Nitze, called Over Ruled: The Human Toll of Too Much Law. In short, Justice Gorsuch gets a lot right about what’s gone wrong with American policymaking. But he ignores the way that judicial abdication has contributed to our overregulated state.
Don’t let The New York Times fool you, equality before the law, civil rights, and the separation of powers will always be cool. Read my Constitution Day op-ed here.
President Biden’s court reforms should be rejected—not just because they are bad, but because the Court is just fine.
Louisiana is equal parts absurd and infuriating when it comes to creating licensing laws that keep people out of jobs. Laugh and cry while reading my op-ed here.
Highlights from oral argument:
Out-of-context SCOTUS quotes:
Some friendly banter:
Chief Justice John Roberts mistakes one of the justices for Justice Antonin Scalia’s ghost:
Justice Kagan, who is widely considered one of the best writers on the Court, had some things to say about the Oklahoma Supreme Court’s decision in Glossip v. Oklahoma:
The Chief Justice warns advocates not to agree with him unless they mean it!
What PLFers are watching:
On Friday there will be dozens of PLFers refreshing the Court’s website to check for its latest cert grants. We have our eyes on PLF’s pending petition concerning the government’s attempts, even after SFFA v. Harvard, to racially balance K-12 schools.
P.S. I finished this post while playing Racko at Starbucks with my daughter, who is in half-day kindergarten. Not all heroes wear capes. Some wear kids’-hot-cocoa-splattered beige pants.
