A Tumultuous SCOTUS Term

Happy Thursday! The next time you accidentally make a wrong turn and add a couple minutes to your commute, show yourself some grace. Odds are you didn’t just cost yourself $7,000.

Quick Hits: Today’s Top Stories

• The Israeli government said Wednesday it had withdrawn its troops from the West Bank city of Jenin after a two-day raid in a Palestinian refugee camp aimed at destroying terrorists’ “infrastructure.” The incursion—one of Israel’s largest operations in the region in two decades—left one Israeli soldier and 12 Palestinians dead, with many more injured or detained. The Israeli military said it destroyed weapons storage and bombs, while the Palestinian authority characterized the raid as a war crime. Doctors Without Borders accused Israeli forces of firing tear gas inside a hospital. “No non-combatants were killed during the counterterrorism activity in the Jenin Camp,” a spokesman for the Israeli military claimed. “The IDF is not fighting against the Palestinian people—only against terrorist operatives.”
• The U.S. Navy said Wednesday American forces successfully prevented the Iranian Navy from seizing two oil tankers in international waters near Oman after Iranian warships opened fire on one of the tankers. Iran has “harassed, attacked or seized” close to 20 merchant vessels in international waters since 2021, according to a U.S. Navy spokesman.
• The Pentagon announced Wednesday it will tighten existing restrictions on classified information access in the wake of a major leak four months ago, including adding detection of electronic device usage in secure facilities and monitoring users’ access to top-secret information. The changes come two weeks after Jack Teixeira, the Air National Guardsman accused of leaking the sensitive military documents, pleaded not guilty to six federal charges.
• Tuesday, according to U.S. National Centers for Environmental Prediction data, was Earth’s hottest day on record—and last month was the hottest June since at least 1940. The record-high temperatures come as surface ocean temperatures reach new peaks and ice levels in the Antarctic Sea hit record-breaking lows.
• The Biden administration approved America’s largest-ever offshore wind project Wednesday, allowing Danish energy company Orsted to build dozens of wind turbines off the coast of New Jersey. The project could power up to half a million homes but has attracted criticism from local residents and Republican lawmakers.
• Ukrainian President Volodymyr Zelensky alleged Tuesday that Russian troops may have placed explosives on the Zaporizhzhia nuclear power plant (ZNPP)—five days after he announced that Ukrainian intelligence suspected a coming attack on the plant, Europe’s largest. A Kremlin spokesperson, meanwhile, warned Wednesday that Ukraine was planning to strike the ZNPP with a missile. The International Atomic Energy Agency (IAEA) said Wednesday it has yet to confirm the presence of explosives at the plant, but requires greater access to monitor the situation.
• China set export restrictions this week on two minerals used to produce semiconductors and other technologies. China and the U.S. have been ramping up such measures in recent months to protect economic advantages and national security. The announcement preceded Treasury Secretary Janet Yellen’s trip to Beijing, which begins today and aims to ease economic tensions between the two countries.
• Meta has launched a new platform called “Threads” meant to take on Twitter. Threads went live Wednesday in more than 100 countries. Meta leaders hope Instagram’s more than 2 billion users will try the new app, launched to capture Twitter’s market share as users flee the platform over Elon Musk’s recent decisions including limiting how many posts accounts can view and pay-walling previously free features.

Scorching SCOTUS

Some elected officials sure are frustrated with the Supreme Court’s jurisprudence these days. “Useless judges,” one claimed, may view the Constitution as a “thing of wax” to “twist and shape” as they see fit.

Oh wait, that was Thomas Jefferson.

The court has always been the object of scorn from those upset by its rulings, but 221 years since Jefferson’s presidency began, SCOTUS faces intensified attacks on its status as a nonpartisan constitutional arbiter. With the dust settling after another term’s ending, the justices are headed out of town for summer vacation and we’re reflecting on their rulings. The court handed down 58 decisions this year, many of which blurred traditional ideological lines. The justices’ rulings in the highest-profile cases also tended to line up with public opinion—but that hasn’t stopped progressives’ calls for changes to the court.

Compared to last year’s contentious term—dominated by leaks and the blockbuster Dobbs ruling overturning Roe v. Wade—SCOTUS this term was downright harmonious. Only five of this year’s 58 rulings were decided 6-3 along traditional ideological lines, compared to last year’s proportional record of 14. And the justices’ statlines this year might surprise you: Justices John Roberts and Brett Kavanaugh were in the majority most often, but even the two justices most often in the minority—Justices Clarence Thomas and Samuel Alito—concurred with the majority in 76 percent and 80 percent of the rulings, respectively.

With six Republican-appointed justices, the court today is more conservative than it’s been in decades. But that doesn’t mean the body has been a rubber stamp for Republican priorities. Justices skipped chances to give conservatives victories on gun laws in New York, transgender sports participation in West Virginia, and access to medication abortions nationwide. They also chopped down the Environmental Protection Agency’s power to regulate wetlands and waterways, part of the court’s recent quest to rein in executive power without express allocation of authority by Congress. The court upheld a federal law granting preference to tribe members in Native American custody and adoption cases—and shot down a challenge to state courts’ oversight of federal election rules pioneered after Donald Trump’s 2020 election loss, winning some praise even from Democrats. “Today’s decision preserves state courts’ critical role in safeguarding elections and protecting the voice and the will of the American people,” Vice President Kamala Harris said in a statement.

But that praise disappeared as soon as the opinions stopped going the White House’s way. After SCOTUS curtailed affirmative action in college admissions, President Joe Biden declared, “This is not a normal court.” The justices also struck down Biden’s controversial student debt cancellation plan, protected a Christian graphic designer’s right to refuse to make websites for same-sex weddings, and beefed up protections for workplace religious accommodation.

These rulings aren’t markedly unpopular. In an ABC News/Ipsos poll after the graphic designer case ruling, 43 percent of Americans approved and 42 percent disapproved of the decision. The same poll showed 45 percent backed the court’s decision on student debt, with 40 percent disagreeing, and found that about 52 percent of Americans approve banning consideration of race in college admissions, while 32 percent disapprove. 

Those rulings might not be enough to turn public opinion back toward the court. Trust in institutions is sinking nationwide, but respect for the Supreme Court took a hit after the Dobbs ruling and hasn’t rebounded. In June, a Quinnipiac University poll found just 30 percent of registered voters approved of the Supreme Court, and 59 percent disapproved—the lowest rating since introducing the question in 2004. In the ABC News/Ipsos poll, 53 percent of Americans surveyed believed SCOTUS justices rule based on partisan political views rather than the law, while only 33 percent affirmed the opposite view. 

Republican lawmakers have long accused Democrats of fueling this trend by taking swings at the court’s institutional strength because they don’t like its rulings. “The left wants a sword dangling over the justices when they weigh the facts in every case,” Senate Minority Leader Mitch McConnell said in 2021. After recent revelations that Justices Clarence Thomas and Samuel Alito accepted vacations and other gifts from wealthy conservatives without disclosing them, some Republicans dismissed Democrats’ furor as born of partisan motives. “They obviously can’t persuade the American people to adopt their radical policies through legislation,” said Sen. Mike Lee. “So they’re attempting to destroy the court’s credibility and intimidate the Republican appointed justices.”

Indeed, Democrats portrayed this term’s high-profile decisions as betrayals of public trust. “Each scandal uncovered, each norm broken, each precedent-shattering ruling delivered is a reminder that we must restore justice and balance to the rogue, radical Supreme Court,” said Sen. Ed Markey of Massachusetts. Senate Majority Leader Chuck Schumer agreed. “This MAGA-captured Supreme Court feels free to accept lavish gifts and vacations from their powerful, big-monied friends, all while they refuse to help everyday Americans,” he said last week.

But some Democrats’ calls to add term limits or add justices to the court haven’t found a champion in the White House, despite Biden’s own problems with recent rulings. He set up a commission to study potential changes to the court, but the 280-page report submitted in December 2021 endorsed only uncontroversial steps like continuing the livestreaming of oral arguments, and the president has done nothing—at least publicly—with the recommendations. Biden told MSNBC the court has done “more to unravel basic rights and basic decisions” than any other recent court, but added, “If we start the process of trying to expand the court, we’re going to politicize it, maybe forever, in a way that is not healthy.”

And internal criticisms of the court also continued this term. After Dobbs, Justice Elena Kagan warned about the legitimacy of the court. “If over time, the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy,” she said last July. “The court earns its legitimacy by what it does, by the way it behaves.”

She expressed similar misgivings this term. Kagan dissented in the EPA case, writing that the court had made itself “decision-maker on climate policy,” and adding she couldn’t “think of many things more frightening.” After the student debt ruling, she said the court risks becoming a “danger to a democratic order.”

Roberts, as we reported last week, warned against this type of criticism. “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” he wrote. “We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”

‘Ministry of Truth’

While the rest of us were enjoying the bounties of freedom—firework displays and copious amounts of hot dogs—a federal court judge was busy preparing the release of a ruling that painted a picture of American freedom suppressed. “The United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth,’” U.S. District Court Judge Terry Doughty argued in a wide-ranging ruling prohibiting the government from working with social media companies to moderate content that contains protected speech.

Doughty issued a preliminary injunction on Tuesday barring White House staffers, officials from several federal agencies, and all employees at the FBI and Justice Department from communicating with social media companies for the purpose of “urging, encouraging, pressuring, or inducing” them to remove or suppress “content containing protected free speech.” While the order is only preliminary—the Biden administration has already appealed the injunction—it marks a significant departure from how the courts have previously dealt with the government’s role in content moderation decisions by platforms, and some legal observers are not convinced that the case’s First Amendment arguments will hold up on appeal or at trial.

The injunction comes in response to a lawsuit filed last May by the Republican attorneys general of Missouri and Louisiana alleging the Biden administration violated the First Amendment by working with social media platforms to censor what it deemed misinformation surrounding COVID-19 vaccines, the lab-leak theory, Hunter Biden’s laptop, the 2020 election, and other hot-button issues. The attorneys general were joined in the suit by several plaintiffs, including Drs. Jayanta Bhattacharya and Martin Kulldorff—coauthors of the Great Barrington Declaration, an open letter opposing COVID lockdown policies. 

Louisiana Attorney General Jeff Landry celebrated the initial victory on Tuesday, highlighting the seriousness of the alleged misconduct. “The evidence in our case is shocking and offensive with senior federal officials deciding that they could dictate what Americans can and cannot say on Facebook, Twitter, YouTube, and other platforms about COVID-19, elections, criticism of the government, and more,” he said. The plaintiffs allege the government’s cooperation with social media companies to suppress and remove content amounts to an unprecedented attack on free speech, and Philip Hamburger—a Columbia Law School professor and CEO of the New Civil Liberties Alliance, a nonprofit legal advocacy group representing some of the plaintiffs in the case—agrees. “It’s the most massive system of suppression in the entire history of the United States,” Hamburger tells TMD. “The case is very important. It’s the first judicial recognition of the seriousness of what’s been happening.”

Doughty—appointed by Trump in 2017 and confirmed in 2018—was sympathetic to the plaintiffs, finding the evidence they had collected suggests a likely future court victory. “Although this case is still relatively young, and at this stage, the court is only examining it in terms of plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario,” he wrote. 

Doughty’s ruling details dozens of instances of White House and federal officials—mostly from the Biden administration, but with a few Trump-era officials sprinkled in—flagging accounts and content to social media companies like Twitter, Meta, and YouTube and requesting the accounts be taken down, the posts removed, or the content’s visibility and reach limited. In one instance, Rob Flaherty—then the Biden White House’s Director of Digital Strategy—castigated Facebook over its COVID-19 content moderation policies. “Are you guys f—— serious,” he wrote in an email about a group of people—the “disinformation dozen”—the White House believed was responsible for a large percentage of what it considered COVID-19 misinformation. “I want an answer on what happened here and I want it today.” The individuals’ accounts were removed the next month.

In another instance, Andy Slavitt, then the White House senior COVID-19 advisor, complained to Facebook about Tucker Carlson’s anti-vaccine posts. “Not for nothing but the last time we did this dance, it ended in an insurrection,” Slavitt said. The company responded saying the content had been “demoted.”

The coordination certainly feels icky—particularly when it’s targeting Biden’s political rivals—but to prove the government violated the First Amendment, the plaintiffs will have to demonstrate that officials not only coordinated with the platforms to suppress and remove content, but that they coerced them to—or “exercised such significant encouragement” that the action taken by the platforms is “deemed to be that of the government.”  

“Persuasion is not the same thing as prohibited First Amendment interference with free expression,” Noah Feldman, a professor at Harvard Law School who helped design Facebook’s Oversight Board, tells TMD, adding that even hounding a company with repeat requests to remove content wouldn’t necessarily constitute a First Amendment violation. “You’d still have to prove that they had some coercive threat that they could use other than saying to the content moderation folks at the social media companies, ‘Lives are on the line, blood will be on your hands if you don’t do something about this,’” Feldman says. “[A government official] can say that all he wants and that doesn’t violate the First Amendment.”

Doughty, however, saw the executive branch’s actions differently, arguing the communication between government officials and the platforms likely constitutes coercion—something he said didn’t necessarily need to be explicit. The White House’s openness to reforms restricting operations of the tech companies, for example, could have been part of an implied quid pro quo, the judge argued, dangling over tech platforms’ heads as they responded to Biden administration requests. 

The track record for plaintiffs in these kinds of lawsuits isn’t great. Even Doughty acknowledged that in O’Handley v. Weber—what he considered “the closest factual case to the present situation”—the Ninth Circuit found that Twitter had not acted on behalf of a California election agency when it removed tweets about election fraud after they were flagged to the company by the agency. But the judge believes the White House’s conduct meets the threshold. “If there were ever a case where the ‘significant encouragement’ theory should apply, this is it,” he argued. 

Some of these issues will soon be adjudicated as the Justice Department appealed the injunction yesterday and reportedly will seek a hold on Doughty’s order while the appeal progresses. “The court’s order, in this case, is certainly too broad; it would insulate the platforms not just from coercion but from criticism as well,” argues Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. “If the court doesn’t narrow the order itself, the appeals court should do it.”

Worth Your Time

• When NATO leaders descend on Vilnius, Lithuania, to discuss the alliance’s future next week, many eyes will be on Sweden’s unyielding bid to join the group in the face of Turkish opposition. But, 16 months into Russia’s war on Ukraine, the 31-country bloc is coming under increasing pressure to seriously consider a possibility that has scared the Kremlin since the start: Ukraine joining NATO. In an open letter published yesterday in POLITICO Magazine, 46 foreign policy experts—including 14 former U.S. ambassadors and three former deputy assistant secretaries of defense—urged the U.S. and its allies to prioritize Ukraine’s security, present and future, at the summit. “The transatlantic community can only be stable and secure if Ukraine is secure. Ukraine’s entry into NATO, fulfilling the promise made at the 2008 NATO summit in Bucharest, would achieve that,” they write. The authors offer specific suggestions for the member countries, urging them to “offer an unequivocal statement of alliance support for Ukraine and for Kyiv’s aim of regaining sovereignty and territorial integrity within its 1991 borders” and “launch a roadmap that will lead clearly to Ukraine’s membership in NATO at the earliest achievable date.” 

Presented Without Comment

Associated Press: “Attorney Lin Wood, who filed legal challenges seeking to overturn Donald Trump’s 2020 election loss, is relinquishing his law license, electing to retire from practicing rather than face possible disbarment.”

Also Presented Without Comment

New York Post: White House Refuses to Answer Questions About Biden’s Estranged 4-year-old Granddaughter Fathered by Hunter

Also Also Presented Without Comment

Milwaukee Journal Sentinel: [Wisconsin Gov.] Tony Evers Uses Veto Powers to Extend Annual Increases for Public Schools for the Next Four Centuries

Toeing the Company Line

• In the newsletters: Nick looks at (🔒) what might be the (temporary) end of COVID-19 politics and Jonah tackles the (🔒) legacy admissions question in the wake of the Supreme Court’s affirmative action decision.
• On the podcasts: On a special narrative episode of Advisory Opinions, Sarah follows Judge Alan Norris and the Legal Eagles on their annual trip to Gettysburg, Pennsylvania, reliving the bloodiest battle of the Civil War.
• On the site today: Harvest explains the issues with completing Trump’s border wall, Kevin discusses the government’s poor planning skills, and Phillip Wallach makes the case for addressing affirmative action and student debt through legislative action.

Let Us Know

Are the recent attacks on the legitimacy of the Supreme Court part of a coordinated political campaign meant to undermine the conservative SCOTUS majority? Sincere concerns voiced by well-meaning progressives? Both?